Crl.Pet./1516/2019
2021 Latest Caselaw 595 Gua

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GAHC010310442019




                                THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : Criminal Petition No. 1516/2019

      Sri Pranabjyoti Barman,
      S/o Dr. Pramode Chandra Barman,
      Resident of House No. 31, Rukmini Nagar,
      Namghar Path, P.S.- Dispur, Guwahati - 7,
      Kamrup (M), Assam


                                                                            ...... Petitioner.
                              -Versus-
   1. The Union of India,
      Represented by the Ministry of Home Affairs,
      New Delhi.


   2. Director,
      Central Bureau of Investigation,
      CGO Complex, Lodhi Road,
      New Delhi, Pin - 110003, though its Standing Counsel.


                                                                         ...... Respondents.

   Advocate appeared for the appellant             : Mr B Barman.
  Advocates appeared for the respondents          : Mr S C Keyal,
                                                   Ms P Das.




                                             BEFORE
                                                                                        Page No.# 2/14

                        HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of Hearing                            : 28.01.2021


Date of Judgment                           : 22.02.2021


                      JUDGEMENT AND ORDER (CAV)

Heard Mr B Barman, learned counsel for the petitioner. Also heard Mr S C Keyal, learned

Standing Counsel appearing for the respondents/CBI.

2. The petitioner, herein, is facing trial as one of the accused in CR(Special) Case No. 2966/2015,

under Sections 120 (B)/ 406/420 IPC, read with Sections 3, 4, 5 of Prize Chits and Money Circulation

Schemes (Banning) Act, pending before the learned Special Magistrate, Kamrup (M). On the basis of

an FIR, dated 03.07.2014, CID Case No. 14/2011 was registered, but subsequently, as per

Government notification, the case was transferred to CBI, and CBI after due investigation submitted

charge sheet on 14.12.2015, which has now been registered as CR Special Case No. 2966/2015 and

the case is at the stage of consideration of charge.

3. The grievances that has been raised by the petitioner that prior to the FIR of the present case,

another case was filed against the petitioner, more or less on identical and similar allegations, being

numbered as BIEO PS Case No. 35/2010, under Sections 120(B)/420 IPC, read with Sections 3/4/5 of

the Prize Chits and Money Circulation Schemes (Banning) Act, and after completion of the

investigation, the case has been ended at charge sheet, which has been registered as GR Case No.

9803/2010. It is the case of the petitioner that BIEO case having been instituted at earlier point of

time on similar allegations, registration of the subsequent FIR at CID is bad in law and same could

have been treated as statement under Section 162 CrPC. Raising the aforesaid grievances, the

petitioner filed a petition before the trial Court that the CR (Special) Case No. 2996/2015 is not

maintainable and prayed for dropping of the proceeding against him. The CBI objected to the said Page No.# 3/14

prayer on the ground that although both the cases seem to be similar and identical, but the

complainant, place of occurrence and sections of law mentioned in FIRs are different from each other.

The learned trial Court by impugned order dated 13.11.2019 has rejected the prayer, holding that the

learned trial Court being at the lowest level in the criminal Court (JMFC) cannot drop its own

proceeding and it would be beyond its jurisdiction.

4. Being aggrieved with the aforesaid order, the petitioner is, before this Court by way of this

petition under Section 482 CrPC, read with Section 397/401 of the CrPC, that the aforesaid two

proceedings cannot run against the same person and if the present case is allowed to proceed, then

there will be double jeopardy in respect of the present petitioner, which will violate the provision of

Article 20 (2) of the Constitution of India.

5. The respondent (CBI), has filed the affidavit, resisting the petition, contending that ingredients

of different sections invoked in the two FIRs in GR Case No. 9803/2010 and CR (Special) Case No.

2996/2015, although identical, but the complainant, place of occurrence are different. It further

contends that accused petitioner could not convince the learned Court of Special Judge, whether

Sanjay Kumar Sarkar/informant in the other case has been brought into the investigation made by the

BIEO and hence, quashing of the FIR will cause injustice to the informant of the other case, and the

same aspect has also been noticed by the learned Special Judge. It has been submitted that the

petition is devoid of merit and liable to be dismissed.

6. The learned counsel for the petitioner has drawn the attention of this Court to the FIRs

pertaining to the aforesaid two cases and has urged before this Court that going by the content of

both the FIRs, it will reflect that exactly on similar accusations, both the FIRs have been filed, save

and except, the informant in both the cases are different. Placing reliance to the decision of Anju

Chowdhury -Vs- Uttar Pradesh; (2003) 6 SCC 384, it has been submitted that there cannot be two

FIRs registered on the same offences, which have been provided to save the litigants from double Page No.# 4/14

jeopardy. The petitioner contends that the learned trial Court is fully empowered to discharge the

accused or to drop the proceeding when the case is not maintainable. But same has not been

exercised by the learned trial Court, which has occasioned a serious prejudice to the petitioner. It

submits that further proceeding of the present subsequent case will result serious injustice to the

petitioner and hence, liable to be interfered by this Court, in view of settled principle of law.

7. In support of the contention, the learned counsel for the petitioner has relied upon the

following decisions:-

1) (2013) 6 SCC 384; Anju Chaudhary -Vs- State of UP & Anr.

2) (2010) 12 SCC 254; Babubhai -Vs- State of Gujarat & Anr.

3) Judgment and order in Criminal Petition Nos. 741/2017 and 541/2017 of Hon'ble Gauhati

High Court (Dipu Datta -Vs- State of Assam and Debajit Das -Vs- State of Assam)

4) Judgment and order in Criminal Petition Nos. 1028/2016 and 989/2016 of Hon'ble Gauhati

High Court (Pranita Das -Vs- State of Assam)

8. The learned counsel for the respondent has relied upon the decision of the Hon'ble Gauhati

High Court in Suman Roy & Anr. -Vs. CBI & Anr.; 2019 0 Supreme (Gau) 147.

9. Due consideration has been given to the arguments advanced by the respective parties and

also gone through the decisions relied.

10. To appreciate the real controversy over the matter that whether both the FIRs are pertaining

to the same incident and identical, let us reproduce the content of both the FIRs. The first FIR dated

09.12.2010, which was registered as BIEO Case No. 35/2020, reads as follows:-

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"To,

The Officer In-Charge, B.I.(E.O.) Police Station, Assam Shrimantapur Guwahati.

      Sub:    FIR.


      Sir,

I am to inform you that Uni-pay 2U is a non-banking financial company having its own offices in Guwahati, one at Chandmari and the other at Christian Basti, Guwahati. The NBFCs cannot accept demands deposits without having proper registration from Reserve Bank of India. But Uni-pay 2U Company indulging public to deposit money and offer incredible return on deposited amount where the Company is a part of the payment settlement system and hence cannot issue cheques. This Company is carrying its business under the guise of providing gold and goods illegally. This company introduces pyramid structure money circulation scheme and indulges public to deposit money for quick and easy returns. The company has its head office at Malaysia and other main office at Bangalore. In Guwahati, Sri Pranab Jyoti Barman is running Uni-pay 2U office at Chandmari and Sri Keshab Kanti Sarma at Christian Basti. It is suspected that this company will close its office in Guwahati soon after collecting huge amount of money from public. The company is not entitled to indulge public to deposit money or make any settlement without having a valid certificate of registration from Reserve Bank of India.

Therefore, I request you kindly to register a case against the office bearers of the company under proper section of law.

Yours faithfully,

Sd/- Upen Chetry, Dy. SP, B.I.(E.O.), Assam, Guwahati.

09/12/2010"

11. The same FIR has ended at charge sheet, which is registered as GR Case No. 9803/2010,

under Sections 120(B)/420 IPC, read with Sections 3/4/5 of the Prize Chit and Money

Circulation Scheme (Banning) Act.

Page No.# 6/14

12. So far as the second FIR is concerned, it was filed as a complaint case No. 483c/2011, which

was forwarded to CID and registered as CID PS Case No. 14/2011 and subsequently, it was

transferred to CBI, who registered the said FIR as RC2192014E0008 dated 03.07.2014 and same was

charge sheeted pertaining to GR Case No. 9803/2010. The second FIR was filed by one Sanjay Kumar

Sarkar before the learned CJM, Kamrup, Guwahati, which reads as follows:-

"CR Case No. 489C/2011

An application under Section 200 of CrPC, 1973

Name of the complainant : Sri Sanjay Kumar Sarkar, S/O Sri Sunil Kumar Sarkar, R/o D-2, Kailash Apartment, 39 H.S.Road, Paltan Bazar, Guwahati - 781008, District - Kamrup (M), Assam.

Name of the accused person : 1. Mr. Mugundhan Gangam MD of UNI PAY 2 U MARKETING PVT. LTD. and Authorized signatory/representative of UNI GATEWAY 2U TRADING PVT. Ltd.

R/o.- No. 23, Jalan Jiran, 25/57, Taman, Srimuda, Shah Alam, Selangor, 40400, Malaysia.

2. Mr Sellathurai Baskar Director of UNI PAY 2 U Marketing PVT. LTD. & UNI GATEWAY 2 U TRADING PVT. LTD.

R/o - D. NO. 53/3D.

Vinayakarpuram, Near Arasupannai, Page No.# 7/14

Devakotta, Post and

3. Mr Chelladurai Amalraj Director UNI, GATEWAY 2 U Trading Pvt. LTD.

R/o - 53/3D Vinayagarpuram, Near Govt. Agri farm, P.O.- Devakottai, Dist. - Sivagangai, PIN - 630302, Tamil Nadu.

4. Mr Pranab Jyoti Barman, In-charge of Independent Service, Centre of UNI PAY 2 U Marketing PVT. Ltd.

              & UNI GATEWAY 2 U TRADING PVT. LTD.                              at House
No. - 13/A,
                              Nizarapar, Chandmari Colony,
                              Guwahati - 781003, Assam.
                              Ph. No. 0361-2666028.


Nature of Offence         :        Offence committed under Sections 420
                              406 of the Indian Penal Code, 1860.


Name of Witness          :         1. Partha Dey,
                              D/o Sankar Dey,
                              Block D, Baskar Nagar, Kalapahar,
                              Guwahati - 18.
                              2. Moni Moy Deka,
                              S/o - Nagen Chandra Deka,
                              R/o- Chatribari, Guwahati -1
                              3. and others.


Cause of action           :        29.05.2010, 15.06.2010, 30.07.2010.
     The humble petition of the above named complainant
                                                                               Page No.# 8/14

MOST RESPECTFULLY SHEWETH:-

1. That Sri Sanjay Kumar Sarkar, S/o- Sri Sunil Kumar Sarkar, resident of Flat No.

D-2, Kailash Apartment, 39 HS Road, Paltan Bazar, Guwahati - 781008, hereinafter, referred to

be the complainant.

2. That the accused persons are respective Directors and the In-charge of the

companies, namely (a) UNI PAY 2 U Marketing Pvt. Ltd. (b) UNI GATEWAY 2U Trading Pvt.

Ltd.

3. That the company, namely, UNI PAY 2 U Marketing Pvt. Ltd. is a registered

company under the Companies Act, 1956, having corporate identity No.

U74999TN2009PICO71782 (2009-2010), issued by the Registrar of Companies, Chennai. That

the Company got registered under the Registrar of Trade Mark bearing No. 1883317 and

1883318. That the company is having its corporate office at House No. 223, 5 th Main, 5th

Cross, Ganga Nagar, Bangalore - 560032, Karnataka and Independent Service Centre at House

No. - 13/A, Nizarapar, Assam. That the company has also obtained Trade Licence for doing

business in Assam from Guwahati Municipal Corporation, being the licence No. 74983, 165/20,

dated 11-05-2010. That the company got permanent account No. - AABCUO844L from the

Income Tax Department and TIN No. - 291 20865186 from the Sales Tax Department.

4. That the company namely UNI GATEWAY 2U Trading PVT. Ltd. is also a

registered company having corporate identity number U74130KA2010PTCO54660, issued by

the Registrar of Companies. That company got permanent account No. from the Income Tax

Department bearing No. AABCU2043B. That the company is having corporate office at No.

223, 5th Cross, Ganga Nagar, Bangalore - 560032, Karnataka and Independent Service Centre

at House No. 13/A, Nizarapara, Chandmari Colony, Guwahati -781003, Assam.

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5. That the company Directors fraudulently introduced their companies as gold

trading company and accepting deposit from the public of the entire North Eastern Region

offering lucrative return on investment.

6. That the company officials approached the complainant to invest in one of the

investment plan and accordingly, the complainant had invested in the company's investment

plan by opening an I.D.

7. That, the complainant had invested an amount of Rs. 5,00,000/- (Rupees Fve

Lakhs) only at Visarav through UNI GATEWAY 2U Trading Pvt. Ltd., on 31st July, 2010 and Rs.

82,500/- on 29.05.2010 and Rs. 1,51,00/- on 15.06.2010, at UNI-PAY 2U Marketing Pvt. Ltd.

8. That the company directors as well as other officials of Guwahati office at

present are avoiding the complainant with a malafide intention to cheat the complainant. That

the complainant tried his level best to contact the company directors, but failed to do so. That

the complainant come to know that the Directors of both the companies instructed to close

down the Guwahati office and has not yet intimated the complainant about the investment

made in the company.

9. That the complainant submitted that the Directors of both the companies very

clearly obtained registration from the Registrar of Trade Mark in connivance with some corrupt

official, wherein the companies were registered as Investment and financial service provider,

but no licence has been obtained from the Reserve Bank of India and thereby causing serious

breach of trust.

10. That the Directors of the Companies having criminal intention has not yet

returned the complainant's money despite of the several requests made by the complainant

and it has become imperative to nab the accused persons as they might fled away.

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11. That, the accused persons/company director in a bid to attract the investors

presenting fake documents of Income Tax Department.

12. That, the action of the accused person is an offence punishable under Sections

420/406 of the Indian Penal Code, 1860. That the complainant has sufficient evidence with

him for cognizance of the offence committed by the accused person/Directors.

It is therefore most humbly prayed before Your Honour to kindly

admit the petition and take cognizance of the offence committed

by the accused person and punish the accused person in

accordance with law.

And for this act of kindness, the abovenamed complainant as in duty bound shall ever

pray."

13. As against the aforesaid FIR, charge sheet, was filed against the five directors of M/s Unipay 2

U Marketing Private Limited and the present petitioner, Pranab Jyoti Barman, as independent In-

charge of Guwahati NE Centre of M/s Unipay 2 U, under Sections 120(B)/406/420 IPC and read

with Section 3/4/5 of the Prize Chit and Money Circulation Scheme (Banning) Act.

14. The charge sheet submitted in the subsequent case reveals that all details of the affairs of the

company, M/s Unipay 2 U has been investigated thoroughly and, thereafter, charge sheet has been

filed as against all the directors of the company, including the present petitioner, who is stated to be

an independent distributor. The sum and substance of the allegation in both the FIRs are exactly

same. The first FIR was filed by one of the officers of BIEO, without any specific cause of action that

the said company indulges public to deposit money and accused petitioner, Pranabjyoti Barman is

running his office at Chandmari and a suspicion was raised that the company will close its office soon

after collecting money and thus, it was mere presumption and assumption as about the affair of the Page No.# 11/14

company. Till that point of time, no other specific allegation as about the conduct of the present

accused petitioner was made. But, however, in the second FIR, specific allegation has been made by a

private/ aggrieved person as against the company directors as well as the officials, including the

petitioner that money invested by him in 2010 has not been returned, hence, cheated. The allegation

in both the FIRs is exactly same, but in the second FIR, specific cause of action has been mentioned

and only the informant in both the cases are different. The informant in the second FIR may not be

examined in the first FIR (which is not reflected in the present petition), but the fact remains that in

both the cases, investigation is carried out against the same set of persons for the same cause of

action and under same section of law and occurrence is of same year 2010

15. In T T Antony -Vs- State of Kerala & Ors.; AIR 2001 SC 2637, the Hon'ble Supreme Court dealt

with a case, where in respect of same cognizable offence and occurrence, two FIRs have been lodged

and the Court held that there cannot be any second FIR and more fresh investigation on receipt of

every subsequent information, in respect of same cognizable offence or same occurrence, giving rise

to one or more cognizable offences. The investigating agency has to proceed only on the information

about commission of a cognizable offence which is first entered in the Police Station diary by the

Officer-In-Charge under Section 158 of the CrPC and all other subsequent information would be

covered by Section 162 CrPC for the reason that it is the duty of the IO not merely to investigate the

cognizable offence report 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 the IO has to file one or more

reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the

IO comes across any further information pertaining to the same incident, he can make further

investigation, but it is desirable that he must take the leave of the Court and forward the further

evidence, if any, with further report or reports under Section 173 (8) of the CrPC. In case, the officer

receives more than one piece of information in respect of the same incident involving one or more

than one cognizable offences such information cannot properly be treated as an FIR as it would, in Page No.# 12/14

effect, be a second FIR and the same is not in conformity with the scheme of the CrPC. The Court

further observed as under:-

"A just balance between the fundamental rights of the citizens under Articles 19 and

21 of the Constitution and the expansive power of the Police to investigate a cognizable

offence has to be struck by the Court. There cannot be any controversy that Sub-Section (8)

of Section 173 CrPC empowers the Police to make further investigation, obtain further

evidence (both oral and documentary) and forward a further report or reports to the

Magistrate. However, the sweeping power of investigation does not warrant subjecting a

citizen each time to fresh investigation by the Police in respect of the same incident, giving rise

to one or more cognizable offences, consequent upon filing of successive FIRs whether before

or after filing the final report under Section 173(2) of the CrPC. It would clearly be beyond the

purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of

investigation in a given case. In our view a case of fresh investigation based on the second or

successive FIRs, not being a counter-case, filed in connection with the same or connected

cognizable offence alleged to have been committed in the course of the same transaction and

in respect of which pursuant to the first FIR either investigation is under way or final report

under Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of

power under Section 482 CrPC or under Articles 226/227 of the Constitution."

16. In Babubhai -Vs- State of Gujarat; (2010) 12 SCC 254, it has been held that an FIR under

Section 154 of the CrPC is a very important document. It is the first information of a cognizable

offence recorded by the Officer-In-Charge of the Police Station. It sets the machinery of criminal law

in motion and marks the commencement of the investigation which ends with the formation of an

opinion under Section 169 or 170 of the CrPC, as the case may be, and forwarding of a Police Report

under Section 173 of the CrPC. Thus, it is quite possible that more than one piece of information be Page No.# 13/14

given to the Police Officer In-Charge of the Police Station in respect of the same incident involving one

or more than one cognizable offences. In such a case, he need not enter each piece of information in

the Diary. All other information given orally or in writing after the commencement of the investigation

into the facts mentioned in the First Information Report will be statements falling under Section 162

CrPC. In such a case, the Court has to examine the facts and circumstances giving rise to both the

FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same

incident in respect of the same occurrence or are in regard to the incidents, which are two or more

parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed.

However, in case, the contrary is proved, where the version in the second FIR is different and they are

in respect of the two different incidents/crimes, the second FIR is permissible. In case, in respect of

the same incident, the accused in the first FIR comes forward with a different version or counter

claim, investigation on both the FIRs has to be conducted.

17. In the light of aforesaid settled propositions of law and applying the test of sameness, if we

read the two FIRs together it becomes clear that both the FIRs have been filed referring to the same

incident of the year 2010. In Anju Chaudhury (supra), it has been held that where several offences

are a part of same transaction, the "test of sameness" has to be applied, whether they are so related

to one another on the point of purpose or cause and effect, so as to result in a one continuous action.

It has been held that second FIR in respect of same offence forming part of same transaction as

complained in the first FIR is not permissible. Commencement of the re-investigation after completion

of previous investigation, pursuant to the first FIR and filing of report based on such investigation

before the Court is not permissible. Further, it has been held that inbuilt safeguards provided under

the CrPC are principles akin to double jeopardy, fair investigation and prevention of abuse of power by

investigating agency.

18. The decision of Suman Roy (supra), relied upon by the respondent, is not applicable in the Page No.# 14/14

present case, as in the aforesaid case, offence was different in nature, one of which is triable by the

learned CJM and the other is exclusively triable by the learned Special Judge, being the offence under

Prevention of Corruption Act and hence, FIR pertaining to different offences was not quashed. But the

case in hand as discussed above, offence is exactly the same.

19. In view of the findings and discussions above, this Court is of the opinion that instead of

quashing the second FIR, it would be suffice if the second FIR is treated as statement under Section

162 CrPC. Accordingly, it is directed that learned trial Court will proceed with the matter by clubbing

both the cases together by the same Court, by treating the second FIR as statement under Section

162 CrPC.

20. The present petition stands disposed of in terms of the observations and directions as above.

JUDGE

Comparing Assistant