Jharkhand High Court

Asha Devi vs The State Of Jharkhand on 12 November, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       Cr.M.P. No.2415 of 2020
                                ------

Asha Devi, aged about 62 years, W/o R.N. Prasad, residing at Barmasia (Near Football Ground), P.O. & P.S.- Dhansar, District- Dhanbad (Jharkhand) ... Petitioner Versus The State of Jharkhand ... Opposite Party

------

             For the Petitioner : Mr. Amit Kr. Das, Advocate
                                  Mr. Sankalp Goswami, Advocate
             For the State      : Mr. Suresh Kumar, SC (L&C)-II

                                            ------
                                        PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-     Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the entire criminal proceeding initiated against the

petitioner in connection with Dhanbad P.S. Case No.229 of 2020 registered for

the offences punishable under Sections 406, 420 and 34 of the Indian Penal

Code and under Section 138 of the Negotiable Instruments Act, 1881.

3. The brief facts of the case is that Dhanbad P.S. Case No.306 of 2019 has

been registered by the police on the basis of the written report submitted by the

complainant/aggrieved persons alleging therein that the

complainant/aggrieved persons deposited their savings with Department of

Post in the form of Senior Citizens Scheme and Monthly Investment Scheme

with various post offices within Dhanbad district. The petitioner was the postal

agent through whom the deposits were made. The petitioner was introduced to

the complainant by the Ex-postmaster who acted as an agent of the petitioner

and the co-accused Ex-postmaster used to collect all the investments in the

name of the petitioner and the petitioner along with the co-accused Ex-

postmaster namely Suresh Dutta Tiwari jointly induced the complainant-victim

to make the investment through them. The complainant has also opened

various recurring deposit accounts believing the petitioner and the co-accused

persons. The complainant/informant gave his consent to transfer the interest

accrued under the Senior Citizens Accounts and MIS Accounts to the recurring

deposit accounts. The petitioner and the co-accused persons also induced the

informant/complainant to leave all the relevant documents so that they could

operate them in best interest of the informant. The informant never withdrew

any sum of money. When the MIS became due for maturity in February, 2019,

the complainant demanded the maturity value. The co-accused did not provide

the maturity value nor gave the relevant MIS book. Though the daughter of the

complainant/informant namely Suman Chatterjee never made any application

for premature withdrawal; yet money has been withdrawn from the account of

Suman Chatterjee, by the said Suresh Dutta Tiwari as premature withdrawal,

without authorized by Suman Chatterjee or the complainant/informant. On

being approached by the informant, the co-accused- Mr. Tiwari apologetically

stated that he, being in acute need of money for his treatment, has withdrawn

the amount and issued post dated cheques. On enquiry, the informant found

that all his postal investments in the shape of Senior Citizens Accounts and MIS

Accounts have been prematurely withdrawn and misappropriated by the

petitioner and the co-accused- Mr. Tiwari in connivance with the Postmasters

of both the Post Offices. On the basis of the said written report submitted by the

informant, which was registered as Dhanbad P.S. Case No.306 of 2019 showing

the petitioner to be a key player in forgery, misappropriation of the postal

deposit money. The FIR of Dhanbad P.S. Case No.229 of 2020 has been

registered on the basis of the application by the Postal Inspector (Central),

Dhanbad Division wherein allegation has been made inter alia against the

petitioner that the petitioner, in furtherance of common intention with the co-

accused persons, has misappropriated the money of the informant of Dhanbad

P.S. Case No.306 of 2019 and his family members on the basis of the forged

signature and withdrew the money and on the basis of the said written report,

Dhanbad P.S. Case No.229 of 2020 has been registered.

4. Learned counsel for the petitioner relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Amitbhai Anilchandra Shah v.

Central Bureau of Investigation & Another reported in (2013) 6 SCC 348

paragraph-58.3 of which reads as under:-

"58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences." (Emphasis supplied)

and submits that therein the Hon'ble Supreme Court of India has

reiterated the consequent test as has been explained in the case of C.

Muniappan & Others v. State of Tamil Nadu reported in (2010) 9 SCC 567,

i.e. if an offence forming part of the second F.I.R. arises as a consequence of the

offence alleged in the first F.I.R. then, the offences covered by both the F.I.Rs

are the same and accordingly the second F.I.R. will be impermissible in law or

in other words, the offence covered in both the F.I.Rs shall have to be treated as

part of the first F.I.R. Hence, it is submitted by the learned counsel for the

petitioner that the prayer as prayed for in this Criminal Miscellaneous Petition

be allowed.

5. Learned SC (L&C)-II appearing for the State on the other hand

vehemently opposes the prayer of the petitioner and submits that the contents

of the FIRs are different and the second FIR having been instituted by the postal

authority and the same is permissible. Hence, it is submitted that this Criminal

Miscellaneous Petition, being without any merit, be dismissed.

6. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, it is pertinent to mention

here that it is a settled principle of law as has been held in the case of T. T.

Antony vs. State of Kerala & Others reported in (2001) 6 SCC 181, paragraph-

27 of which reads as under:-

"27. 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 subsection (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. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. 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) 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."

(Emphasis supplied)

that 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 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 of the

Code of Criminal Procedure or under Articles 226/227 of the Constitution.

7. It is also a settled principle of law that if the substratum of the two FIRs

are common, the mere addition of Sections 467, 468 and 471 in the subsequent

FIR cannot be considered as different ingredients to justify the latter FIR as

being based on different materials, allegations and grounds as has been held by

the Hon'ble Supreme Court of India in the case of Prem Chand Singh vs. State

of Uttar Pradesh & Another reported in (2020) 3 SCC 54 paragraph-11 of

which reads as under:-

"11. It is, therefore, apparent that the subject-matter of both the FIRs is the same general power of attorney dated 2-5-1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds." (Emphasis supplied)

8. Now coming to the facts of the case, this Court, after going through the

two FIRs, is of the considered view that the FIR of Dhanbad P.S. Case No.229 of

2020 is the second FIR in respect of the self-same offence for which the

Dhanbad P.S. Case No.306 of 2019 has already been registered. There is no

discovery made on actual foundations in the FIR of Dhanbad P.S. Case No.229

of 2020. No distinct offence is made out in the FIR of Dhanbad P.S. Case No.229

of 2020. Thus, this Court has no hesitation in holding that continuation of the

FIR of Dhanbad P.S. Case No.229 of 2020 against the petitioner who is also an

accused person of Dhanbad P.S. Case No.306 of 2020 is hit by Section 162 of the

Code of Criminal Procedure. Hence, continuation of the FIR of Dhanbad P.S.

Case No.229 of 2020 qua the petitioner will amount to abuse of process of law.

Therefore, this is the fit case where the entire criminal proceeding in connection