Sachin Dutta vs State Of U.P. And Another
2023 Latest Caselaw 6945 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 16.02.2023
 
Delivered on 03.03.2023
 

 
Court No:-46
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1492 of 2023
 
Petitioner :- Sachin Dutta
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ram Shiromani Shukla,Anubhav Shukla
 
Counsel for Respondent :-  G.A.,Sanjay Kumar Yadav
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Gajendra Kumar,J.

(Per Hon'ble Gajendra Kumar, J.)

1. Heard learned counsel for the petitioner and learned AGA for the State-respondents.

2. The instant writ petition has been filed with the following prayer:-

"(a) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ directing the consolidation of all the FIRs specifically First Information Report at Central Bureau of Investigation bearing No.RC 219 2017 E 0017 dated 02.08.2017 at Police Station-CBI/EO-I at New Delhi and numerous other FIRs across the State of U.P. and other cases which the petitioner is not aware, emanating from similar set of facts and allegations and pertaining to single housing project in question namely "Foster Heights Housing Project" so that all of them can be investigated and tried together.

(b) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ directing the Respondents to expedite and for conclusion of investigation and trial of all cases and other cases which the petitioner is not aware, emanating from similar set of facts and allegations and pertaining to single housing project in question namely "Foster Heights Housing Project" in a time bound manner.

(c) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ to grant stay of proceedings emanating from the FIR at Central Bureau of Investigation bearing No.RC 219 2017 E 0017 dated 02.08.2017 at Police Station CBI/EO-I at New Delhi and numerous other FIRs in the State of U.P. from similar set of facts and allegations and pertaining to single housing project in question namely Foster Heights and all other FIRs that have been lodged against the petitioner but are not within the knowledge of the petitioner and any other FIRs that come to the knowledge of this Court or the petitioner during the pendency of the writ petition.

(d) Issue any other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case in the interest of justice.

(e) Award cost of this writ petition to petitioner."

3. Besides other FIRs, the impugned First Information Report has been lodged by the Central Bureau of Investigation (C.B.I.) with the allegation that petitioner being Director of the Company namely, M/s Shri Balaji Hi-tech Constructions Pvt. Ltd., connived with allottees and cheated the Bank by obtaining housing loans on the basis of false and fabricated documents.

4. Petitioner is a Director of the Company, namely, M/s Shri Balaji Hi-tech Constructions Pvt. Ltd. It is further submitted that petitioner has been falsely implicated in the present case due to ulterior motive as petitioner was constantly remained ill and was not able to attend the day to day affairs and operations of the aforesaid Company, therefore, for the convenience of the proper business operations and to facilitate the regular functioning of the Company, he had handed over few signed blank allotment letters and other important documents to the Sales Head and Financial Head of the Company, namely, Neeraj Tiwari and Jai Tiwari. Hence, it cannot be denied that the said key employees of the Company in conspiracy with the other co-accused persons including the Bank officials might have misused the documents in order to obtain illegal multiple loans against one common flat. It is further submitted that petitioner, on his own, has not obtained any loan from any Bank over the said flats. It is further submitted that petitioner was not aware about any ambiguity or irregularity committed in the documents such as allotment letter, tripartite agreement etc. which was submitted on behalf of the Company before the Bank, because, all the documents submitted on behalf of the Company were prepared and arranged by the sales head and financial head and not from the side of the petitioner. It is further submitted that petitioner is facing multiplicity of investigations and trials emanating from the common set of facts and allegations, which is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India. In this regard, counsel for the petitioner has placed reliance upon the judgments of Apex Court in the cases of T.T. Antony Vs. State of Kerala; (2001) 6 SCC 181 and Amitbhai Anichandra Shah Vs. CBI; (2013) 6 SCC 348. Lastly, it is submitted that petitioner is languishing in jail since 10.03.2017, whereas instant FIR has been lodged on 02.08.2017, which shows that during lodgment of impugned FIR, petitioner was in jail and was not aware, as to how, impugned FIR has been lodged against him, therefore, the present case is nothing but an abuse of process of law.

5. On the other hand, learned AGA for the State has vehemently opposed the contention aforesaid and submits that petitioner is a Director of the aforesaid Company and is involved in committing the aforesaid offence as all the FIRs are based on multiple cause of actions. There have been multiple transactions and several allotment letters have been issued by the accused, therefore, in the specific facts and circumstances of the case, the prayer made by the counsel for the petitioner cannot be granted.

6. Before entering into the facts of this case, we deem it proper to examine the law relating to the clubbing or consolidation of the FIRs. Section 154 of the Cr.P.C. provides for registration of the FIR on the basis of the information relating to the commission of cognizable offences. Section 155 of Cr.P.C. provides for recording of such information in respect of non-cognizable offences. Section 169 and 170 of the Cr.P.C. provide for the course of action on completion of investigation i.e. to release the accused when evidence is deficient or to send the case to Magistrate when evidence is sufficient. Section 173 of the Cr.P.C. requires the police officer to submit the final report before the Magistrate on completion of investigation containing the requisite details. Sub-section (8) of Section 173 permits further investigation after submission of report to the Magistrate. Section 220 of the Cr.P.C. deals with trial for more than one offences and provides that if in one series of act so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Similarly, Section 219 of the Cr.P.C. provides that three offences of the same crime within one year may be charged together.

7. Considering the above statutory provisions by various judicial pronouncements, it is settled that there can be no straightjacket formula for consolidating or clubbing the FIR and Courts are required to examine the facts of each case. A second FIR in respect of same offence or different offences committed in the course of same transaction is not permissible. The second FIR on the basis of receipt of information in respect of same cognizable offence or the same occurrence or incident giving rise one or more cognizable offences is not permissible. It is also settled that the Courts are required to draw a balance between the fundamental rights of the citizens under Article 19 and 21 of the Constitution and expansive power of the police to investigate a cognizable offence. In a given case, second or successive FIR for same or connected cognizable offence alleged to have been committed in the course of the same transaction in respect of which earlier FIR is already registered, may furnish a ground for interference by the Court but where the FIRs are based upon the separate incident or similar or different offences or the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the earlier FIR then the second FIR can be registered. Where two incidents took place at different point of time or involve different person or there is no commonality and the purpose thereof is different and the circumstances are also different then there can be more than one FIR. The Court is required to see the circumstances of a given case indicating proximity of time, unity or proximity of case, continuity of action, commonality of purpose of the crime to ascertain if more than one FIR can be allowed to stand.

8. The Supreme Court in the matter of T.T. Antony (supra) after taking note of the provisions of Section 154, 155, 156, 157, 162, 169, 170 and 173 of the Cr.P.C. and considering the issue of striking a balance between citizen's right under Article 19 and 21 of the Constitution and expansive power of police to make investigation, has held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. It has further been held that after registration of the FIR under Section 154 of the Cr.P.C. in respect of commission of the cognizable offence, all such subsequent information is covered by Section 162 of Cr.P.C. and that Officer Incharge of the Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports provided in Section 173 of Cr.P.C.

9. The Supreme Court in the matter of Upkar Singh Vs. Ved Prakash and others; (2004) 13 SCC 292 has clarified and explained the judgments in the case of T.T. Antony (supra) and has held that the second complaint in regard to the same incident filed as a counter complaint is not prohibited under the Cr.P.C. It has been held that in T.T. Antony's case (supra) the legal right of an aggrieved person to file counter complaint has not been considered.

10. In the case of Rameshchandra Nandlal Parikh Vs. State of Gujarat and another; (2006) 1 SCC 732, it has been held that if subsequent complaints were not in relation to same offence or occurrence or did not pertain to same party as alleged in the first report then on that ground the subsequent complaint need not be quashed.

11. In the case of Nirmal Singh Kahlon Vs. State of Punjab and others; (2009) 1 SCC 441 where the C.B.I. registered the second FIR considering the nature and extent of crime, the Hon'ble Supreme Court held that the C.B.I. detecting larger conspiracy not detected by local police is not precluded from lodging the second FIR.

12. In the case of Babubhai Vs. Stae of Gujarat and others; (2010) 12 SCC 254, the Supreme Court has further clarified it that if two FIRs pertains to two different incidents/crimes, second FIR is permissible. Applying the test of sameness, it has been held that subsequent to registration of an FIR any further complaint in connection with the same or connected offence relating to the incident or incidents which are part of the same transaction is not permissible.

13. In the case of Amitbhai Anilchandra Shah (supra), Hon'ble Supreme Court has considered the applicability of 'consequence test' as laid down in the case of C. Muniappan and others Vs. State of Tamil Nadu; (2010) 9 SCC 567 and has held that there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurence or incident giving rise to one more cognizable offence. It has further been held that the second FIR is permissible in the case of cross cases and it is also permissible if the offence disclosed does not form part of the first FIR or it cannot be said to be part of the same transaction as covered by the first FIR or cannot be said to be arising as a consequence of the offence covered by the first FIR.

14. In the case of Awadesh Kumar Jha @ Akhilesh Kumar Jha Vs. State of Bihar; (2016) 3 SCC 8, it has been held that if the substance of allegation in the second FIR is different from the first FIR and the second FIR relates to different transaction then the second FIR can be maintained.

15. In the case of Chirag M. Pathak & others vs. Dollyben Kantilal Patel & others (2018) 1 SCC 330 in a case where six FIRs were registered in different police stations and the ground was raised that all the FIRs are based on identical facts, the Hon'ble Supreme Court held that the six cooperative societies were different, their members were different, their area of operation was different, the lands which were sold/transferred were also different in different area, the party to whom the land was sold was different. The totality of factual allegations constitutes commission of several offences in relation to every cooperative society, hence, the FIRs were not overlapping and no case for quashing the FIR was made out.

16. In the matter of Lalu Prasad Yadav (supra), the defalcations were from different treasury for different financial year, amount involved was different, fake vouchers/allotment letters/supply orders were prepared with the help of different sets of accused persons, the Supreme Court has held that the separate trials are required to be conducted. It has further been clarified that 'same offence' is different from 'same kind of offence' and has held that if 'same kind of offence' was committed multiple times then each time it constitutes a separate offence and therefore accused can be tried in different trials. It has also been clarified that even if the modus operandi was same that would not make it a single offence when offences were different.

17. In the case of Arnab Ranjan Goswami vs. Union of India and others; (2020) 14 SCC 12, it has been held that filing of such multiple FIR causes intervention into petitioner's right as a citizen to fair treatment under Article 14 and freedom to conduct independent portryal of views under Article 19 (1)(a), but that is not so in the present case because petitioner is a Director of the aforesaid Company and all the FIRs are based on multiple cause of actions. There have been multiple transactions and several allotment letters have been issued by the accused (petitioner), therefore, in the specific facts and circumstances of the case, the prayer made by the counsel for the petitioner regarding consolidation of FIRs cannot be granted, as such, the same is liable to be rejected and is hereby rejected in view of the aforesaid law laid down by the Apex Court in case of Arnab Ranjan Goswami (supra).

18. Thus, it is settled that subsequent FIRs for different offences committed in the course of same transaction or offences arising as a consequence of prior offence is not permissible but the second complaint in regard to the same incident filed as a counter complaint as also the second FIR for the same nature of offence against same accused persons lodged by different person or containing the different allegation is permissible.

19. Though the different FIRs reveal that the same kind of offence has been registered against the petitioner for different courses and categories of persons but they are not the same offence or the offence in the same cause of action. The subsequent FIRs do not arise as a consequence of allegations made in the first FIR. Hence, the test of 'sameness' and the test of 'consequence' is not satisfied in the present case.

20. So far as contention made by the counsel for the petitioner with respect to expedite the trial for all the cases is concerned, at this juncture, in view of the judgment of Apex Court in case of Romila Thapar Vs. Union of India; (2018) 11 SCR 951, wherein, it has been held that investigation cannot run at the behest of the accused and an accused cannot be permitted to take control of the investigation by choosing from where should he be investigated.

21. Thus, in the light of the analysis of the case as mentioned above and after perusal of the impugned First Information Report as well as the abovenoted judgments of the Apex Court, the petitioner are not entitled for any of the reliefs claimed by the petitioner in this writ petition.

22. With the aforesaid observations, the writ petition stands dismissed.

23. No order as to cost.

Order Date :-03.03.2023

Ashutosh