Jharkhand High Court
Hari Narayan Ray @ Hari Narayan Rai ... vs State Through Cbi on 6 December, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2600 of 2017
----
Hari Narayan Ray @ Hari Narayan Rai @ Harinarayan Ray son of
late Nilkant Rai, resident of Sonaraythari, PO PS Sonaraythari,
District Deoghar 814150 (Jharkhand).
... Petitioner
-versus-
State through CBI ... Opposite Party
----
WITH
Cr. M.P. No. 2597 of 2017
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Hari Narayan Rai son of late Nilkant Rai, resident of Sonaraythari,
PO PS Sonaraythari, District Deoghar 814150 (Jharkhand).
... Petitioner
-versus-
State through CBI ... Opposite Party
----
Cr. M.P. No. 2800 of 2019
----
Sanjay Kumar Rai son of late Nilkant Rai, resident of Sonaraythari,
PO PS Sonaraythari, District Deoghar 814150 (Jharkhand).
... Petitioner
-versus-
The Union of India through CBI ... Opposite Party
----
Cr. M.P. No. 2801 of 2019
----
1. Sushila Devi wife of Hari Narayan Rai, resident of Sonaraythari,
PO PS Sonaraythari, District Deoghar 814150 (Jharkhand).
2. Sanjay Kumar Ray @ Sanjay Kumar son of late Nilkant Ray,
resident of Sonaraythari, PO PS Sonaraythari, District Deoghar
814150 (Jharkhand).
... Petitioners
-versus-
The Union of India through CBI ... Opposite Party
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioners : Mr. Sanjiv Kumar, Sr. Advocate
Mr. Afaque Rashidi, Advocate
Mr. Shadab Ansari, Advocate
Md. Azam, Advocate
For the Opp. Party : Mr. Prashant Pallav, ASGI
Ms. Shivani Jaluka, AC to ASGI
Mr. Parth Jalan, AC to ASGI
----
ORDER
RESERVED ON 08.07.2022 PRONOUNCED ON 6.12.2022
17/ 6.12.2022 Petitioners, in this criminal miscellaneous petitions have
challenged the order taking cognizance dated 29.07.2013 passed by the
Special Judge, CBI, Ranchi in RC 04(A)/2010-AHD-R(F), by which cognizance
of the offence under Section 120(B), 420, 471 of the Indian Penal Code and
Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 has
been taken and the Court below proceeded against the petitioners.
During course of argument, it was brought to the notice of this
Court by the learned senior counsel appearing for the petitioners that after
filing these criminal miscellaneous petitions under Sections 482 of the Code of
Criminal Procedure, the Court has framed charge against the petitioners vide
order dated 05.11.2019 and 08.11.2019 for offences under Sections 120B
read with Sections 420, 201, 471 of the Indian Penal Code and also under
Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988.
2. All these petitioners had approached this Court by filing separate
criminal miscellaneous petitions. They are related to each other.
3. A complaint was filed before the Court of Vigilance-cum-Additional
Judicial Commissioner, Ranchi against the petitioner No.1 Hari Narayan Rai
and one Enos Ekka. The allegation in the complaint is that Hari Narayan Rai
and Enos Ekka were the Ministers in the Government of Jharkhand and they
have amassed huge assets illegally. There is also allegation against them that
they manipulated several documents. They purchased plots in the name of
their relatives including in-laws. There are other allegations to the effect that
after becoming Ministers, they floated construction companies and got their
company registered so that they can legalise the money which they are
amassing. Alleging different type of corruptions, said complaint was filed. In
terms of Section 156(3) of the Code of Criminal Procedure, the complaint was
sent for registering a First Information Report. Vigilance Police Station Case
No.26 of 2008 was registered under Sections 406, 409, 420, 423, 424, 465,
120B of the Indian Penal Code and also under Sections 11/13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act.
Thereafter, this Court vide order dated 04.08.2010 passed in
W.P.(PIL) No.4700 of 2008 and W.P.(PIL) No. 2252 of 2009, directed the
Central Bureau of Investigation to take up the investigation of Vigilance Police
Station Case No.26 of 2008, which related to commission of various offences
punishable under the Indian Penal Code and the Prevention of Corruption Act.
The Central Bureau of Investigation took over the case and started
investigation. The Central Bureau of Investigation filed Chargesheet No.1
dated 16.01.2012 for offences under Section 109 of the Indian Penal Code
and Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption
Act, 1988 against accused Hari Narayan Rai, Sanjay Rai and Sushila Devi. In
the said chargesheet, the investigation was limited on the point of
Disproportionate Assets amassed by the accused persons. The said
chargesheet was filed only limiting to Disproportionate Assets, which was
amassed by these petitioners and investigation on the remaining aspects and
allegations were kept for further investigation. Be it noted that there are
several allegations against the petitioners, which constituted to be offences not
related to each other.
After Chargesheet No.1 was filed, learned Special Judge, CBI,
Ranchi took cognizance of the offence on 27.01.2012.
4. Since the investigation continued, Central Bureau of Investigation
filed another chargesheet being Chargesheet No.5 on 29.07.2013. The
aforesaid chargesheet related to registration of companies by the accused
persons on fake documents after hatching a conspiracy. Cognizance was
taken of the offence covered under the said chargesheet on 29.07.2013.
5. Again on 29.07.2013 another chargesheet was filed for
registration of another company on the basis of fake documents by the
accused persons. The Court also took cognizance.
6. In chargesheet No.5, there were 9 (nine) accused persons, which
relates to Mahamaya Construction Company and the accused persons and
chargesheet No.6 relates to one Gauri Construction Company. After taking
cognizance of the offences under Chargesheet Nos.5 and 6, the matter did not
proceed. The Special Judge, CBI proceeded to try the accused persons in
relation to the allegations made in respect of Chargesheet No.1, which related
to amassing disproportionate assets. Ultimately, vide judgment dated
14.12.2016, Special Judge, CBI, Ranchi convicted Hari Narayan Rai, Sushila
Devi and Sanjay Kumar Rai in R.C. 4 (A)/2010-AHD-R for committing offence
under Sections 109 of the Indian Penal Code and Section 13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act, 1988. Hari Narayan Rai
was further found guilty for offence under Section 3 of the Prevention of Money
Laundering Act punishable under Section 4 of the Prevention of Money
Laundering Act in ECIR 01/Pat/09/AD.
7. Thereafter, the Court proceeded and took cognizance of the
offence under Sections 120(B), 201, 420, 471 of the Indian Penal Code and
Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988 in respect of the materials, which were there against these petitioners in
Chargesheets Nos.5 and 6 and later on charge has also been framed.
These orders taking cognizance are under challenge by all the
petitioners.
9. Learned senior counsel appearing for the petitioners argued that
once the petitioners have been convicted vide judgment dated 14.12.2016 in
RC 4(A)/2010-AHD-R, there cannot be another trial against the petitioners on
the same First Information Report. He submits that the order taking
cognizance which put the petitioners to face trial after filing of the chargesheet
will amount to violation of fundamental rights of the petitioners under Article
20(2) of the Constitution of India. He submits that when the petitioners were
facing trial in relation to Chargesheet No.1, chargesheets Nos.5 and 6 were
already on record, the Court did not take any evidence on that. He also admits
that the accused also failed to bring to the notice of the Court that other two
chargesheets are pending, which could have been tried together. In support of
his contention, he relied upon the following judgments:-
(i) Luckose Zachariah @ Zak Nedumchira Luke & Ors
vs Joseph Joseph & Ors. 2022(4) SCALE, 193
(ii) Vinay Tyagi vs Irshad Ali @ Deepak & Ors (2013) 5,
SCC, 762
(iii) Essar Teleholdings Limited vs Central Bureau of
Investigation (2015) 10 SCC 562
(iv) Nasib Singh vs State of Punjab & Anr., AIR 2021 SC
5175 : (2022) 2 SCC 89
(v) Udai Bhan Karwariya vs State of U.P. 2016(1) ALJ
Thus, he prayed that the entire trial and the order taking
cognizance and thereafter framing of charge should be set aside.
10. Learned counsel appearing on behalf of the Central Bureau of
Investigation submitted that initially a complaint was filed alleging different
types of misdeeds committed by the petitioner No.1, who at the relevant point
of time was Minister in the Government of Jharkhand. Once the said complaint
was referred to the Central Bureau of Investigation and the Central Bureau of
Investigation took over investigation, it found that several offences have been
committed by the petitioner No.1 by misusing his post in connivance with other
accused persons. Central Bureau of Investigation also found that the offences
are distinct and separate. Thus, separate chargesheets were filed, keeping the
investigation pending. Initially chargesheet was submitted to the offence of
amassing wealth disproportionate to the known sources of income, whereas
chargesheets Nos.5 and 6 relate to registration of Mahamaya Construction
Company and Gauri Construction Company, respectively, on the basis of fake
documents after hatching conspiracy with several persons. The persons
involved in these offences are different, thus, two chargesheets were filed and
the petitioners to be tried separately. He contends that the First Information
Report is not an encyclopedia, but when separate sets of offences are
committed, which are not connected with each other, accused can be tried
separately even though there is a single First Information Report. He relies
upon the following judgments:-
(i) (2013) SCC Online Cal 22863
(ii) (2015) SCC Online Cal 5044
(iii) (2003) SCC Online Kar. 563
11. The issue, which falls for consideration before this Court is
whether, after conviction of the petitioners on 14.12.2016, again they can be
put on trial in connection with chargesheets Nos.5 and 6. The allegation, which
was levelled against the petitioners in the complaint covers several
acquisitions. Investigation was referred to the Central Bureau of Investigation.
The Central Bureau of Investigation, while investigating, found that the
petitioners have committed numerous offences by misusing their possession.
Those offences, which they had committed, were not connected to each other
and were distinct and separate. Chargesheet No.1 related to amassing wealth
disproportionate to the known sources of income, in which the petitioners were
tried and convicted. Chargesheet No.5 relates to fraudulent registration of a
company in the name and style of Mahamaya Construction Company on the
basis of fake documents and after hatching conspiracy and chargesheet No.6
is in relation to fraudulent registration of Gauri Construction Company.
12. While investigating in respect of registration of Mahamaya
Construction Company, several materials were unearthed, which according to
investigating agency, is an offence. In chargesheet, details have been
mentioned. In the said chargesheet, after investigation, it was found that the
Rural Works Department, Government of Jharkhand, status of Class 1A
Contractor was accorded to the said firm. This petitioner, Hari Narayan Rai
was the Minister of the Department at the relevant time. His wife Sushila Devi
was the major partner of the firm. The original file relating to registration was
not available in the department and was taken away from the custody of
Sanjay Kumar, the P.S. to accused Hari Narayan Rai on the pretext that the
Minister wants to see the file, but the file was never returned by the Minister. It
has been further mentioned in the chargesheet that on fraudulent materials
registration was granted. The conditions for registration was not fulfilled and
imposters and fake persons were shown to be engineers employed by the
Company and certificates of those persons were also found to be fake and
forged. In this context, it has been mentioned in the chargesheet that one
Ramjee Sahay Srivastava Awadhesh Prasad and Ramanand Prasad were
found to be fake persons. Certificates in the name of Kamla Kumari was found
to be fake. Diploma Certificate of Bhola Nath Shukla was also fake. The firm
produced some documents and invoices to show that they own machineries
but when these letters were sent to those companies from where machineries
were purchased, they were returned undelivered with an endorsement that
they cannot be traced. Further, some companies informed that they did not
issue such invoices. The department, on the basis of these forged, fabricated
documents, awarded huge works to the said company. The company could not
have been registered as they did not fulfill the criteria and in connivance with
the Minister, i.e., petitioner, this Company was floated and was awarded huge
government work illegally. The facts, which surfaced during investigation,
definitely constitute an offence for which chargesheet No.5 was filed.
13. Similarly, chargesheet No.6 relates to registration of Gauri
Construction Company. The modus operandi adopted by the accused persons
is similar as was adopted by the accused persons in registration of Mahamaya
Construction Company. Fake, non-existent persons were shown to be
employees and basing on fake and forged documents, the firm was registered.
Be it noted that younger brother (Sanjay Rai) of the accused Minister Hari
Narayan Rai was the major partner. Many documents and certificates were
found to be fake, which constitutes an offence. Thus, these two chargesheets
were filed on which cognizance has been taken and petitioners are being tried.
14. The facts narrated above in the aforesaid two chargesheets and
the offences alleged are absolutely different and not related to the offence for
which petitioners have been tried and convicted.
15. Section 218 of the Code of Criminal Procedure provides that for
every distinct offence for which any person is accused, there shall be separate
charge and every such charge shall be tried separately. Section 218 of the
Code of Criminal Procedure reads as under:-
218. Separate charges for distinct offences. - (1) For every
distinct offence of which any person is accused there shall
be a separate charge, and every such charge shall be tried
separately;
Provided that where the accused person, by an
application in writing, so desires and the Magistrate is of
opinion that such person is not likely to be prejudiced
thereby, the Magistrate may try together all or any number
of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of
the provisions of sections 219, 220, 221 and 223.
16. Sections 219 to 221 of the Code of Criminal Procedure are the
exceptions to the said provision. The Hon'ble Supreme Court, in the case of
Nasib Singh versus State of Punjab and Another, reported in (2022) 2 SCC
89 has formulated the principles on joint trial and separate trial at paragraph
51 thereof, which reads as under:-
51. From the decisions of this Court on joint trial and
separate trials, the following principles can be formulated:
51.1 Section 218 provides that separate trials shall be
conducted for distinct offences alleged to be committed by
a person. Sections 219-221 provide exceptions to this
general rule. If a person falls under these exceptions, then
a joint trial for the offences which a person is charged with
may be conducted. Similarly, under Section 223, a joint
trial may be held for persons charged with different
offences if any of the clauses in the provision are
separately or on a combination satisfied.
51.2 While applying the principles enunciated in Sections
218-223 on conducting joint and separate trials, the trial
court should apply a two-pronged test, namely, (i) whether
conducting a joint/separate trial will prejudice the defence
of the accused; and/or (ii) whether conducting a joint/
separate trial would cause judicial delay.
51.3 The possibility of conducting a joint trial will have to
be determined at the beginning of the trial and not after the
trial based on the result of the trial. The appellate court
may determine the validity of the argument that there
ought to have been a separate/joint trial only based on
whether the trial had prejudiced the right of accused or the
prosecutrix.
51.4. Since the provisions which engraft an exception use
the phrase "may" with reference to conducting a joint trial,
a separate trial is usually not contrary to law even if a joint
trial could be conducted, unless proven to cause a
miscarriage of justice.
51.5 A conviction or acquittal of the accused cannot be set
aside on the mere ground that there was a possibility of a
joint or a separate trial. To set aside the order of conviction
or acquittal, it must be proved that the rights of the parties
were prejudiced because of the joint or separate trial, as
the case may be.
17. More or less on similar facts, the Hon'ble High Court of Judicature
at Calcutta in the case of Ramkrishna Goswami versus State of West
Bengal & Another, reported in 2013 SCC OnLine Cal 22863, at paragraph
20 has held as follows: -
20. With regard to the issue of filing of thirteen charge
sheets in conclusion of investigation of a single First
Information Report, I am of the view that ordinarily a First
Information Report would result for filing of a singular
charge sheet. However, if it appears to the investigating
agency that the distinct offences were committed in course
of several transactions by the same accused then it is
within the domain of the investigating agency to file
separate chargesheets for each of such distinct
offence/offences. Such an action of the investigating
agency is, in fact, in aid of fair trial so that no prejudice is
caused to the accused persons by framing jumbled up
charge in a single trial in respect of different offences
committed in the course of separate transactions.
18. In the instant case, as held earlier, the investigating agency found
that the offence committed by these petitioners are distinct, separate and not
of same transaction and rather arise out of several transactions. Conniving
with accused persons and getting the firm registered on the basis of fake
documents and taking the original documents and not returning the same is
different offence arising out of absolutely different transaction and is not
related with the offence of money laundering or of disproportionate assets, for
which the petitioners were tried and convicted. Further, the accused in that
particular trial are different than the instant case.
19. The judgments, which the petitioners have cited are different on
factual aspects. In the case of Vinay Tyagi, which has been heavily relied upon
by the petitioners, facts are absolutely different and arise out of same
transaction, which is not the case here, rather the judgment of the Hon'ble
Supreme Court in the case of Nasib Singh (supra) and the judgment of the
Hon'ble High Court of Judicature at Calcutta in the case of Ramkrishna
Goswami (supra), which have been referred above, are relevant and
applicable in the instant case.
20. Further, Article 20(2) of the Constitution of India reads as follows:-
20. Protection in respect of conviction for offences. - (1) ...
(2) No person shall be prosecuted and punished for the
same offence more than once.
(3) ...
21. In this case, as held earlier, petitioners are not being tried for the
same offence. Offences are entirely different and arise from different
transactions, though may be from same First Information Report. Guiding
factor will not be the First Information Report, but will be the nature of offence
and whether it is distinct and arise out of separate transaction.
22. Considering the aforesaid law and the facts in this case, where
the offences committed by these petitioners are different, distinct and not
arising out of same transaction, I find no illegality in filing two separate
chargesheets by the Central Bureau of Investigation and proceeding thereafter
by the Court below. The Special Judge has committed no illegality in taking
cognizance of the offences and trying separately for the said charges.
23. Thus, there being no merit, all these criminal miscellaneous
petitions are dismissed.
24. In view of the dismissal of the criminal miscellaneous petitions,
I.A. No. 9585 of 2018 in Cr. M.P. No.2600 of 2017 and I.A. No.9586 of 2018 in
Cr. M.P. No.2597 of 2017 are also dismissed.
(Ananda Sen, J.)
Kumar/Cp-03
