Jharkhand High Court

Swami Vivekanand Seva Trust vs Union Of India Through The ... on 19 September, 2023

                                         1        W.P. (Cr.) No. 240 of 2005 and tagged matters



       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P. (Cr.) No. 240 of 2005
    Swami Vivekanand Seva Trust, Jamshedpur through its President Dr.
    Ranjit Choudhary                                    ... Petitioner
                                -Versus-
1. Union of India through the Secretary, Ministry of Tribal Affairs,
    Government of India, New Delhi
2. Secretary, Ministry of Tribal Affairs, Government of India, New Delhi
3. Director, Ministry of Tribal Affairs, Government of India, New Delhi
4. Director, Central Bureau of Investigation, Ministry of Home Affairs, New
    Delhi
5. D.I.G. Of Police, C.B.I., Ranchi Region, Ranchi
6. State of Jharkhand, through the Chief Secretary, Government of
    Jharkhand, Ranchi
7. Chief Secretary, Government of Jharkhand, Ranchi
8. Director General of Police, Government of Jharkhand, Ranchi
9. Superintendent of Police, East Singhbhum, Jamshedpur
10. Officer-in-charge, Bistupur Police Station, East Singhbhum, Jamshedpur
11. Saroj Kr. Das
12. Manager, Union Bank of India, Jamshedpur            ... Respondents
                                  With
                     W.P. (Cr.) No. 91 of 2021
1.   Swami Vivekananda Seva Trust, Jamshedpur through its Secretary,
     Kamal Kanti Das
2.   Kamal Kanti Das                            ... Petitioners
3.   Ashim Bose,
                              -Versus-
1.   State of Jharkhand                         ... Respondent
                                With
                     W.P. (Cr.) No. 186 of 2021
     Saroj Kumar Das                                         ... Petitioner
                                  -Versus-
1.   The State of Jharkhand
2.   District Welfare Officer, Bistupur, Jamshedpur, District- East Singhbhum
                                                         ... Respondents
                                 -----

 CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                 -----

For the Petitioners : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate [in W.P. (Cr.) Nos. 240 of 2005 & 91 of 2021] Mr. Shankar Lal Agrawal, Advocate [in W.P.(Cr.) No.186 of 2021] For the State : Mr. Manoj Kumar, G.A.-III [in W.P. (Cr.) Nos. 240 of 2005 & 91 of 2021] : Mr. Faisal Allam, A.C. to S.C. (Mines)-III [in W.P. (Cr.) No. 186 of 2021] For Resp. No.11 : Mr. Shankar Lal Agrawal, Advocate [in W.P. (Cr.) No. 240 of 2005]

For the CBI : Mr. Nitish Parth Sarthi, A.C. to A.S.G.I.

-----

35/19.09.2023 In all these writ petitions, common question of fact and laws are

involved and that is why, all these writ petitions have been heard together

with consent of the parties.

2. Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioners in

W.P. (Cr.) Nos. 240 of 2005 and 91 of 2021, Mr. Shankar Lal Agrawal,

learned counsel for respondent no.11 in W.P. (Cr.) No.240 of 2005 and

learned counsel for the petitioner in W.P. (Cr.) No.186 of 2021, Mr. Manoj

Kumar and Mr. Faisal Allam, learned counsel for the State and Mr. Nitish

Parth Sarthi, learned A.C. to A.S.G.I., appearing for the CBI.

3. In W.P. (Cr.) No.240 of 2005, the prayer is made for transferring the

case to the CBI in connection with Bistupur P.S. Case No. 154/2003 in light

of D.O. letter dated 05.02.2004 of Director, Ministry of Tribal Affairs,

Government of India.

4. Prakash Chandra Nandi in the capacity of founder trustee of Swami

Vivekananda Seva Trust (hereinafter to be referred to as "SVST"),

Jamshedpur made a written report dated 05.08.2003 to the Officer-in-

Charge, Bistupur Police Station, Jamshedpur informing him about the

criminal acts of Saroj Kumar Das who misused his former identity of being

erstwhile Secretary of SVST opened another Trust with a deceptively similar

name being Swami Vivekananda Trust and in the garb of the aforesaid trust,

fraudulently and dishonestly received and criminally misappropriated a huge

sum amounting to Rs.42,17,819/- released by the Ministry of Tribal Affairs,

Government of India, New Delhi in favour of the SVST. For this purpose,

illegal banking transactions were also carried out. On discovery whereof,

Prakash Chandra Nandi made the aforesaid report dated 06.08.2003 to the

Officer-in-Charge of Bistupur Police Station. Hence, Bistupur P.S. Case

No.154/2003 was registered under Sections 419/420/406 of the Indian

Penal Code.

5. In W.P. (Cr.) No.91 of 2021, the prayer is made for quashing the

second FIR being Bistupur P.S. Case No.60/2021, dated 24.02.2021

registered under Sections 406, 409, 420, 34 of the Indian Penal Code,

pending in the court of the learned Chief Judicial Magistrate, Jamshedpur.

6. In W.P. (Cr.) No.186 of 2021 also, the prayer is made for quashing the

FIR being Bistupur P.S. Case No.60/2021, dated 24.02.2021 registered

under Sections 406, 409, 420, 34 of the Indian Penal Code, pending in the

court of the learned Chief Judicial Magistrate, Jamshedpur.

7. Bistupur P.S. Case No.60/2021 was registered on the basis of a type-

written report dated 24.02.2021 of Shri Rajesh Kumar Pandey, District

Welfare Officer, East Singhbhum, Jamshedpur alleging therein that there

was misappropriation of Rs.19,44,780/- and Rs.22,73,039/- (total

Rs.42,17,819/-) granted by the Ministry of Tribal Affairs, Government of

India in the financial year 2003, released on 31.01.2003 and 31.03.2003 as

grant for running of primitive tribe girls' hostel, which was received by a

person named Saroj Das. The money was received in favour of SVST, when

the President of the Trust was one Ranjit Choudhary and Secretary was one

Nakul Chandra Pramanik. It was further alleged that on 18.08.2020, a

utilization certificate has been demanded from the organization, who replied

on 19.08.2020 that they never received by its former Secretary- Saroj Das

who misappropriated it. It has been stated by the informant that it seems

that SVST, its former Secretary-Saroj Das, the then President Ranjit

Choudhary, the then Secretary-Nakul Chandra Pramanik, the present

President, the present Secretary-Kamal Kanti Das, the then Trustee Kamal

Das, the then Trustee Prakash Chandra Nandi, the then Accountant Ashim

Bose and all the trustees belonging to the period starting from 2002-03 till

date have together misappropriated the said amount of the Government of

India by obtaining it fraudulently.

8. Mr. Pandey Neeraj Rai, learned counsel for the petitioners in W.P.(Cr.)

Nos.240 of 2005 and 91 of 2021 submits that Dr. Ranjit Choudhury was the

Trustee and President of SVST and Prakash Chandra Nandi, who left for his

heavenly abode was the founder Trustee of the SVST. He submits that the

said Trust was created on 15.05.1983 by a devotee of Sri Sri Ramakrishna

Paramahansa Deva being donor of the property with 11 Trustees and the

said Trust was registered on 18.06.1983 with the Sub-Registrar,

Jamshedpur. He further submits that the said Trust was meant to follow the

philosophy and program of Ramakrishna Mission and Ramakrishna Math and

supplement the activities of the Ramakrishna Mission in general and that of

the Ramakrishna Mission Vivekananda Society, Jamshedpur in particular as

an independent organization. He submits that a study centre for the MCA,

BCA and CIC Computer Courses under the Indira Gandhi National Open

University (IGNOU) was started in January, 2001 by SVST as the host

organization. He further submits that one Mr. Saroj Das, was then the

Secretary of the SVST and the said centre of IGNOU was the only study

centre in Jamshedpur where computer courses were conducted. He also

submits that in the month of February, 2002 financial irregularities were

detected on the part of the Saroj Das, the then Secretary of the SVST and it

was revealed that he misappropriated an amount of about Rs.2,72,000/-

received for SVST from IGNOU as the Computer Hiring Charges and,

thereafter, the said Saroj Das tendered his resignation from the post of

Secretary and trusteeship on 26.02.2002 and he left the SVST. He further

submits that after his resignation, Saroj Das along with other persons

started a private computer centre in the name and style of Swami

Vivekananda Trust, which was resembling the name of SVST with the sole

purpose to confuse and mislead the people and to cheat them. He submits

that sensing some foul play the accounts of the SVST study centre were

audited and it was found that a sum of Rs.11,90,905/- was paid less to the

SVST on account of Computer Hiring Charges by the PIC during the period

April, 2001 to August, 2003. He submits that this amount was calculated on

the basis of the amount released from IGNOU for SVST i.e. to the tune of

Rs.24,97,570/- issued by the Regional Director. He further submits that the

said Saroj Das in flagrant violation of law and with the sole purpose to grab

fraudulently, dishonestly and with criminal intention to misappropriate the

amount sanctioned for SVST, had floated another Trust, namely, Swami

Vivekananda Trust in a deceptively similar name of Swami Vivekananda

Seva Trust. He submits that huge amount of fund released from the

Government of India for SVST was misappropriated by the said Saroj Das.

He submits that the grants were paid by the office of the Ministry of Tribal

Affairs, Government of India, New Delhi by way of two Demand Drafts,

issued in the name of SVST which were received by the said Saroj Das

personally from the office of the Ministry of Tribal Affairs, Government of

India, New Delhi. He submits that SVST was running a Primitive Tribal Girls

(PTG) Hostel at Jamshedpur, MGM Police Station, Mango, Jamshedpur. He

also submits that for the said PTG Hostel, the Ministry of Tribal Affairs,

Government of India, New Delhi released money in the name of the SVST.

The SVST received first installment of Rs. 13,59,000/- initially to begin with

on 17.05.2001. Subsequently, two more installments of grants of following

amounts were released on following dates, i.e. on 28.02.2003 a sum of

Rs.19,44,780/- and on 16.04.2003 a sum of Rs.22,73,039/-.In this

background, he submits that the FIR was registered. He submits that the

police in the said case has submitted final form, whereby, the said Saroj Das

was exonerated and protest petition was filed by the informant which was

converted into protest complaint case and in the meantime, the informant

left for his heavenly abode and that is why, that complaint was not decided

on merit. He further submits that though the said Saroj Das ceased to be

the Secretary of SVST since 26.02.2002, he personally received the said two

Demand Drafts on 03.03.2003 and 16.04.2003 from the Ministry of Tribal

Affairs, Government of India, New Delhi pretending and impersonating

himself as the Secretary of the SVST. The said two drafts were not

deposited by Saroj Das in the account of the SVST, rather they were

deposited in a saving bank account no.6860 of Union Bank of India, Tinplate

Branch, Jamshedpur which was a separate account operated by Saroj Das

and another unknown person, namely Satyanarayan Jai. He further submits

that one of the two account payee drafts bore an account number being

6248 of Union Bank of India, which was presumably mentioned at the

instance of Saroj Das. The said account number 6248 also never belonged

to the SVST. He submits that Saroj Das opened another saving bank

account number 6748 in the name of Swami Vivekananda Seva Trust with

the signatories being said Saroj Das and one Sudhal Acharya without

approval of the Board of Trustees. The said Sudhal Acharya had never been

a member of Board of Trustees of the SVST and hence he had no concern

with the administration of SVST. The said account number 6748 was also

closed after some time. He submits that in this background, letter dated

05.02.2004 was issued for approval by the Director, Ministry of Tribal Affairs,

Government of India, New Delhi to the Director, CBI, New Delhi stating

therein as under:

(a) About Ministry's role in implementing various projects including

the project of hostel for primitive tribal groups sanctioned in

favour of the petitioner's organization namely Swami

Vivekananda Seva Trust.

(b) Release of Rs.13.59 Lakhs, Rs.19.44 Lakhs and Rs.22.73 Lakhs

respectively for the project.

(c) Collection of Bank Drafts of Rs.19.44 Lakhs and Rs.22.73 Lakhs

by Saroj Das.

(d) Lodgement of FIR by the founder trustee of Seva Trust as per

the Ministry's advice, Ministry request to the State Government

for enquiry.

(e) Failure on part of the State Government in sending any enquiry

report to the Ministry, but Saroj Das having sent such report

consisting of reports of Deputy Development Commissioner

and Superintendent of Police and also some newspaper

cuttings.

9. Mr. Pandey Neeraj Rai, learned counsel for the petitioners further

refers paragraphs 5 and 6 of the letter dated 05.02.2004 of the Ministry,

which read as under:

"5. While examining the reports certain flaws have come to

the notice of the Ministry e.g. the Demand Drafts were issued against a particular account number whereas the same appear to have been credited against a new account opened by Shri Saroj Das. The facts of Sri Saroj Das's original registration, continuation with the trust, creation of a new trust, opening of a new account were never intimated to the Ministry and thus, how Shri Saroj Das went on transferring amount from one account to another need further probe in the matter. There appears to be connivance of bank officials and civil administration of East Singhbhum District with Sri Saroj Das, which has resulted in misappropriation of an account of Rs.42.17 Lakhs. The Ministry is not satisfied with the report of the Deputy Development Commissioner and Superintendent of Police in view of this suspicion.

6. As District and Bank officials appear to have connived with Shri Saroj Das to defraud the sanctioned amount of Rs.42.17 Lakhs the Ministry has decided to have the matter enquired into by CBI."

10. By way of referring the above, he submits that by the said letter,

request was made by the Ministry of Tribal Affairs, Government of India to

the Director, CBI, New Delhi to register a case in the matter for further

probe and a letter dated 18/19.03.2004 of the DIG of Police, CBI, Ranchi

Region, Ranchi was sent to the Director, Ministry of Tribal Affairs,

Government of India, New Delhi stating therein that the case has already

been registered by the local police in which final form has been submitted

and the CBI can take over the case for investigation on the same allegations

only if the State Government entrusts the matter for fresh/further

investigation to CBI. He submits that in this background, the earlier letter

dated 05.02.2004 address to the Director, CBI, D.O. letter dated 31.03.2004

was sent by the Secretary, Ministry of Tribal Affairs, Government of India to

the Chief Secretary, Government of Jharkhand, contained in Annexure-16,

request to entrust the matter to CBI for further investigation. The State

Government has not responded favourably. In this background, the writ

petition is filed for handing over the matter to the CBI for further

investigation. He further submits that the counter affidavit has been filed by

the respondent-State, wherein, at paragraph 6 it has been disclosed that

the Government of Jharkhand is having opinion for taking steps for

investigation of the case by the CBI in view of Annexures-14, 15 and 16 and

Government of Jharkhand has no objection if the case is being enquired by

the CBI. He submits that the case may kindly be handed over to the CBI. He

further submits that for the same allegation, which is the subject matter of

W.P.(Cr.) No.240 of 2005, Bistupur P.S. Case No.60/2021, dated 24.02.2021

has been registered and the investigation is going on. He submits that in

the present case, the office bearer of Swami Vivekananda Trust as well as

Saroj Das all have been made accused. He also submits that even the dead

persons have not been spared and they have also been made accused. He

submits that in view of that, second FIR being Bistupur P.S. Case

No.60/2021, dated 24.02.2021 is not maintainable in light of the judgments

passed by the Hon'ble Supreme Court in the case of T.T. Antony v. State

of Kerala and others, reported in (2001) 6 SCC 181 and in the case of

Babubhai v. State of Gujarat and others, reported in (2010) 12 SCC

254.

11. Mr. Shankar Lal Agrawal, learned counsel for the petitioner in W.P.(Cr.)

No.186 of 2021 submits that the challenge is also made in this petition for

quashing of the entire criminal proceeding in connection with Bistupur P.S.

Case No.60/2021, dated 24.02.2021 and the petitioner-Saroj Das has

unnecessarily been made accused as final form was already there and this

petitioner has not been sent up for trial. The complaint petition was filed.

He submits that he is not aware as to whether the complaint case has been

decided or not. He submits that once the case has attained finality, the

SVST is having alternative remedy and, therefore, the FIR registered against

this petitioner- Saroj Das is malafide. On these grounds, he submits that

this petition may kindly be allowed and the FIR may kindly be quashed. He

further submits that in a routine manner, the power under Section 482

Cr.P.C. and Article 226 of the Constitution of India cannot be exercised

unless a cogent reason is made out as has been held by several judgments

of the Hon'ble Supreme Court.

12. Mr. Manoj Kumar, learned counsel for the State submits that the

counter affidavit has been filed on behalf of the respondent-State, wherein,

at paragraph 6 it has been stated that the State has got no objection if the

case is entrusted to the CBI for further investigation as money of the Union

of India has been misappropriated i.e. the allegation. He refers to the letter

dated 31.03.2004 of Government of India and submits that in that letter,

the Chief Secretary of the Government of Jharkhand was requested to

kindly withdraw the court case and entrust the matter to CBI for

fresh/further investigation mentioning the reason/ground contained in the

letter dated 05.02.2004 issued by the Ministry of Tribal Affairs and request

was also made to intimate the Ministry at the earliest.

13. Mr. Nitish Parth Sarthi, learned A.C. to A.S.G.I., appearing for the CBI

submits that the case has not been entrusted to the CBI as yet and reply

has already been filed by the CBI. He submits that it is open to the court to

take a decision on the point of handing over the case to the CBI.

14. In this background, the court has gone through the contents of the

first FIR as well as second FIR and looking into the contents of both the

FIRs, it transpires that embezzlement of amount to the tune of Rs.42.17

Lakhs are same in both the FIRs and the allegations are also there with

regard to embezzlement of the said amount by Mr. Saroj Das. Thus, it

appears that for the same transaction, second FIR has been registered.

15. The judgment relied by Mr. Pandey Neeraj Rai in T.T. Antony and

Babubhai (supra) are not in dispute. It is well settled that for similar

transaction, second FIR is unwarranted.

16. The contention of Mr. Shankar Lal Agrawal, learned counsel for

respondent no.11 in W.P. (Cr.). 240 of 2005 and the petitioner in W.P.(Cr.)

No. 186 of 2021 with regard to handing over the case to the CBI is not in

dispute, it is well settled in a routine way, no case can be transferred to the

CBI by the High Court. Only in a case which is made out for handing it over

to the CBI, that power can be exercised by the constitutional courts. In the

case in hand, request is already there by the Government of India of

handing over the matter to the CBI, which has been accepted by the

Government of Jharkhand and the CBI has no difficulty. In view of this fact,

the contention of Mr. Agrawal is negated by this court.

17. In the above background and considering the letter of the

Government of India, whereby, request has been made for CBI

investigation, which has been accepted by the Government of Jharkhand,

the court comes to a conclusion that investigation of all these cases are

required to be done together.

18. A reference may be made to the judgment passed by the Hon'ble

Supreme Court in Amitbhai Anilchandra Shah v. C.B.I. , reported in

(2013) 6 SCC 348, wherein, at paragraphs 38 and 60 of the said

judgment the Hon'ble Supreme Court has held as under:

"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.

60. In view of the above discussion and conclusion, the second FIR dated 29-4-2011 being RC No. 3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4-2011 by this Court in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No. 5 of 2013."

19. It has been submitted that protest cum complaint case filed by the

complainant was not decided on merit and in the meantime, the

complainant has left for his heavenly abode.

20. In view of the above and considering the request made by

the Government of India which has been accepted by the Government

of Jharkhand and the CBI has got no objection if the matter is handed

over to the CBI, these matters are handed over to the CBI to re-investigate

the matter. Thus, the material already collected till date in the second

FIR being Bistupur P.S. Case No.60/2021, dated 24.02.2021 shall be treated

as part of the first FIR being Bistupur P.S. Case No.154/2003, dated

06.08.2003.

21. If any case is pending before the learned court with regard to first