Manish Varma vs The State Of Jharkhand
2022 Latest Caselaw 1642 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        A.B.A. No.9109 of 2021
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1. Manish Varma

2. Man Mohan Varma .... .... .... Petitioners Versus The State of Jharkhand .... .... ....Opposite Party

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CORAM     : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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   For the Petitioners         : Mr. Vimal Kriti Singh, Adv.
                                 Mr. Ujjal Choudhary, Advocate
                                 Mr. Shishir Raj, Adv.
   For the State               : Mr. Aashutosh Anand, AAG-III
   For the Informant           : Mr. R.S. Mazumdar, Sr. Adv.

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   Order No.08 Dated- 25.04.2022
          Heard the parties.

Apprehending their arrest in connection with Bank More P.S. Case No. 106 of 2021 instituted under Sections 406, 419, 420, 467, 468, 471, 34 of the Indian Penal Code, the petitioners have moved this Court for grant of privileges of anticipatory bail.

Learned counsel appearing for the petitioners submits that the allegation against the petitioners is that though the petitioner no.1 resigned from the post of director of the company on 06.03.2017 and was not authorized to do transactions on behalf of company namely M/s Pre-Stressed Udyog (India) Pvt. Ltd., he impersonated himself as a director of the company and withdrew Rs.13.75 lakhs on 31.03.2017 through cheque from New Delhi Branch of Indian Overseas Bank and thereby committed cheating and criminal breach of trust. The allegation against the petitioner no.2 is that though the petitioner no.2 resigned from the post of director of the company on 02.05.2017, he by impersonating himself as a director of the company and upon showing incorrect address of the company registered a power of attorney being P.O.A. IV-537 in his favour in the registry office Dhanbad. It has further been alleged that the power of attorney holder of the petitioner no.2 has used the said illegal power of attorney to sell various properties registered in the name of the company, located at Mouza Saraidhella, Mouza No.8, District-Dhanbad, by means of various sale deeds including sale deeds bearing No.2175 dated 20.05.2020 registered at Dhanbad. It is submitted by learned counsel for the petitioners that so far the allegation against the petitioner no.1 is concerned, the said allegation is mentioned in paragraph of 47 of the case diary, recorded during course of investigation of FIR being Bank More P.S. Case No.338 of 2019, wherein the date of receipt of Supervision Report, wherein there is reference of the said allegation, has been mentioned as 05.07.2020. It is then submitted that the allegation against the petitioner no.1 was already the subject matter of investigation of Bank More P.S. Case No.338 of 2019 before lodging of this First Information Report, of this case. It is next submitted that in paragraph 37 of the case diary, the allegation against the petitioner no.1 has also been mentioned to the effect that the investigation in respect of the same is also going on and the said entry was made on 14.03.2020 and subsequently, the informant knowing pretty well that the allegations in this case are of consequential nature of the main offences for which the F.IR. vide Bank More P.S. Case No.338 of 2019 has already been registered, only in order to harass the petitioners, instituted a separate case by lodging the First Information Report of this case. It is submitted that the allegation against the petitioners is false and the dispute between the parties is basically a civil dispute. Learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court of India in the case of Amitbhai Anilchandra Shah v. CBI and Anr., reported in (2013) 6 SCC 348, para 37 and 38 of which read as under:

"37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. Xxxxxxxxxxxx

38. Mr Raval, learned ASG, by referring T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court: (1) Upkar Singh v. Ved Prakash [(2004) 13 SCC 292 : 2005 SCC (Cri) 211] , (2) Babubhai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , (3) Chirra Shivraj v. State of A.P. [(2010) 14 SCC 444 : (2011) 3 SCC (Cri) 757 : AIR 2011 SC 604] , and (4) C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] In C. Muniappan [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court explained the "consequence test" i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR."

And submits that the First Information Report of this case is in fact the 2nd First Information Report in respect of the selfsame alleged offence or at the most the consequence of the first offence.

The learned counsel for the petitioners also relied upon the judgment of the Hon'ble Supreme Court of India in the case of C. Muniappan v. State of T.N., reported in (2010) 9 SCC 567, para 37 of which reads as under:

"37. The submission on behalf of the appellants that two crimes bearing Nos. 188 and 190 of 2000 could not be clubbed together, has also no merit for the simple reason that if the cases are considered, keeping in view the totality of the circumstances and the sequence in which the two incidents occurred, taking into consideration the evidence of drivers and conductors/cleaners of the vehicles involved in the first incident and the evidence of C. Ramasundaram, VAO (PW 87), we reach the inescapable conclusion that the second occurrence was nothing but a fall out of the first occurrence. The damage caused to the public transport vehicles and the consequential burning of the University bus remained part of one and the same incident. Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge- sheet could not be filed (see T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048])."

And submits that the allegations made in the First Information Report of this court may be treated as the fallout of the allegations made in the Bank More P.S. Case No.338 of 2019.

The learned counsel for the petitioners further relies upon the judgment of the Hon'ble Supreme Court of India in the case of Krishna Lal Chawla v. State of U.P., reported in (2021) 5 SCC 435, para 10, 12, 13 and 14 of which read as under:

"10. Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case. As this Court has held in Amitbhai Anilchandra Shah [Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309] , such an absurd and mischievous interpretation of the provisions of the CrPC will not stand the test of constitutional scrutiny, and therefore cannot be adopted by us.

12. Thus, it is incumbent upon this Court to preserve this delicate balance between the power to investigate offences under the CrPC, and the fundamental right of the individual to be free from frivolous and repetitive criminal prosecutions forced upon him by the might of the State. If Respondent 2 was aggrieved by lack of speedy investigation in the earlier case filed by him, the appropriate remedy would have been to apply to the Magistrate under Section 155(2) CrPC for directions to the police in this regard. Filing a private complaint without any prelude, after a gap of six years from the date of giving information to the police, smacks of mala fides on the part of Respondent 2.

13. It is also crucial to note that in the fresh complaint case instituted by him, Respondent 2 seems to have deliberately suppressed the material fact that a charge-sheet was already filed in relation to the same incident, against him and his wife, pursuant to NCR No. 160 of 2012 (Crime No. 283 of 2017) filed by Appellant 1's son. No reference to this charge-sheet is found in the private complaint, or in the statements under Section 200 CrPC filed by Respondent 2 and his wife. In fact, both the private complaint and the statement filed on behalf of his wife, merely state that the police officials have informed them that investigation is ongoing pursuant to their NCR No. 158 of 2012. The wife's statement additionally even states that no action has been taken so far by the police. It is the litigant's bounden duty to make a full and true disclosure of facts. It is a matter of trite law, and yet bears repetition, that suppression of material facts before a court amounts to abuse of the process of the court, and shall be dealt with a heavy hand (Ram Dhan v. State of U.P. [Ram Dhan v. State of U.P., (2012) 5 SCC 536 : (2012) 3 SCC (Cri) 237] ; K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC 481] ).

14. It is also pertinent to note that as on 5-8-2012, Appellant 1 was a 76-year-old man; Appellant 2 was suffering from epileptic seizures; and Appellant 4 was of unsound mind. There is no equity in allowing them to be dragged into criminal proceedings pertaining to a petty offence, instituted 6 years after the alleged incident. The sword of Damocles cannot be allowed to forever hang on their heads, falling unpredictably at the whims of a litigant seeking to harass and persecute at will. We gain strength in our conclusions from Article 21 of the Constitution, which encapsulates the right to a speedy trial. This right has been interpreted to include not only the actual trial before the Court, but also the preceding stages of inquiry and police investigation as well (Vakil Prasad Singh v. State of Bihar [Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355 : (2009) 2 SCC (Cri) 95] ; Abdul Rehman Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93])."

And submits that the First Information Report of this case is uncalled for more so because the petitioner no.1 is an old man of more than 80 years. It is next submitted that the petitioner no.1 has already been given the privileges of anticipatory bail in connection with Bank More P.S. Case No.338 of 2019 by this court vide order dated 20.09.2021 passed in A.B.A. No.5491 of 2021 and that the dispute between the parties is basically a civil dispute. It is lastly submitted that the petitioners undertake to co-operate with the investigation of the case. Hence, it is submitted that the petitioners be given the privileges of anticipatory bail.

Learned AAG-III appearing for the State being assisted by learned senior counsel for the informant opposes the prayer for anticipatory bail of the petitioners and submits that the offences in this case are not consequential offences of the offences involved in Bank More P.S. Case No.338 of 2019 and in this respect, the senior counsel for informant relied upon the judgment of the Hon'ble Supreme Court of India in the case of Nirmal Singh Kahlon v. State of Punjab and Ors., reported in (2009) 1 SCC 441, para 67 of which reads as under:

"67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."

Learned senior counsel for the informant in support of his contention also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Awadesh Kumar Jha v. State of Bihar and Anr., reported in (2016) 3 SCC 8, para 22 and 23 of which read as under:

"22. The second FIR was registered against the appellants on a written complaint of Arvind Kumar Singh, Inspector of Police at Kishanganj Police Station. It was found by the investigating officer during the course of investigation in the first FIR that real name of Appellant 1 was Awadesh Kumar Jha, s/o late Kaladhar Jha, r/o Gram Akbarpur, District Purnea and was found to be working as Development Officer at New India Assurance Co. Ltd. Branch Purnea; contrary to the same the personal information was furnished by him at the time of investigation of the case on the first FIR. Similarly, with regard to Appellant 2 his father's name was found to be late Ramendra Prasad and not late Ramanand. His actual address was found to be Ranipatti PS Kumarkhand, District Madhepura and he was found to be working as surveyor and investigator of all branches of General Assurance Co. It is also alleged in the second FIR that both the appellants had not disclosed their correct names, father's name, their address and occupation in the bail applications filed by them in respect of the case arising out of the first FIR before the Additional Sessions Judge.

23. From a bare perusal of the second FIR, it is abundantly clear that both the appellants have furnished wrong information to the police as to their names, father's name and address during the course of investigation made on the first FIR. This Court is of the view that the offences alleged to have been committed by them are mentioned in the second FIR, which offences are distinct offences committed by both the appellants and the same have no connection with the offences for which the first FIR was registered against them. Therefore, for the reason stated supra, the contention urged by the learned counsel on behalf of both the appellants that instead of institution of the second FIR for the said offences, a further investigation as provided under sub-section (8) to Section 173 CrPC should have been done by the investigating officer on the ground of they being the part of same transaction with offences registered under the first FIR, is wholly untenable in law and liable to be rejected."

And submits that the petitioner ought not be given the privilege of anticipatory bail.

Having heard the submissions made at bar and carefully going through the materials of the record considering the facts of the case, I am inclined to grant privileges of anticipatory bail to the petitioners. Accordingly, the petitioners are directed to surrender in the Court within six weeks from today and in the event of their arrest or surrendering, they will be enlarged on bail on furnishing bail bond of Rs.25,000/- (Twenty five thousand) each with two sureties of the like amount each to the satisfaction of learned CJM, Dhanbad in connection with Bank More P.S. Case No. 106 of 2021 with the condition that they will co-operate with the investigation of the case and appear before the investigating officer as and when noticed by him and furnish their mobile number and photocopy of the Aadhar Card with an undertaking that they will not change their mobile number during the pendency of the case and subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

(Anil Kumar Choudhary, J.) AFR- Pappu/