Madhya Pradesh High Court
Ashok Mishra vs The State Of Madhya Pradesh on 16 October, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 16TH OF OCTOBER, 2023
WRIT PETITION No. 18939 of 2023
BETWEEN:-
BRIJLAL CHAUHAN S/O LATE A.R. CHAUHAN, AGED
ABOUT 63 YEARS, OCCUPATION: EX JOINT REGISTRAR
COOPERATIVE SOCIETIES H.NO. 112 VINEET KUNJ
AKBARPUR KOLAR RAD BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UDAY GUPTA & SHRI SAURABH SHRIVASTAVA-ADVOCATES )
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY DEPARTMENT OF HOME
AFFAIRS, VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. SPECIAL POLICE ESTT. LOKAYUKTA BHOPAL,
DISTRICT BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ABHIJEET AWASTHY & SHRI ARJUN BAJPAI- ADVOCATES)
WRIT PETITION No. 23596 of 2023
BETWEEN:-
ASHOK MISHRA S/O DHARAM NATH MISHRA
OCCUPATION: THEN DEPUTY REGISTRARM CO-
OPERATIVE SOCIETIES R/O 52 DEEPAK SOCIETY,
CHUN A BHATTA, KOLAR ROAD, BHOPAL (MADHYA
PRADESH) (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UDAY GUPTA & SHRI SAURABH SHRIVASTAVA-ADVOCATES )
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 17-10-2023
11:03:18
2
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY DEPARTMENT OF HOME
AFFAIRS VALLABH BHAWANM, BHOPAL
(MADHYA PRADESH) (MADHYA PRADESH)
2. SPECIAL POLICE ESTT. LOKAYUKTA BHOPAL
DISTRICT BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ABHIJEET AWASTHY & SHRI ARJUN BAJPAI- ADVOCATES)
Reserved on : 09.10.2023
Pronounced on : 16.10.2023
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These petitions having been heard and reserved for orders, coming on
for pronouncement this day, JUSTICE HIRDESH passed the following:-
ORDER
CONTENT & CONTEXT
The petitioner-Brijlal Chauhan (W.P.No.18939/2023) has filed present
petition for issuance of writ of mandamus for clubbing of 28 F.I.Rs. (FIR
Nos.183/13, 184/13, 195/13, 196/13, 224/13, 225/13, 226/13, 227/13, 312/13,
365/13, 373/13, 378/13, 381/13, 405/13, 412/13, 413/13, 414/13, 417/13, 461/13,
465/13, 466/13, 467/13, 473/13, 216/14, 220/14, 221/14, 226/14 &, 272/14)
registered at Police Station, Special Police Establishment, Lokayukt, District
Bhopal and also for clubbing the charge-sheets or any other proceedings arising
out of 28 FIRs and all the FIRs be treated to be one single FIR No.183/13
dated 29.6.2013, in which, charge-sheet has been filed on 30.6.2015 and
registered as Special Case 66/15 and is pending at the stage of prosecution
evidence before the First Additional Sessions Judge/Special Court (PC Act) for
offences under sections 420, 467, 468, 471, 120-B, 34 of the Indian Penal
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MAMTANI
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Code, for intent and purposes.
2. The petitioner-Ashok Mishra (W.P.No.23596/2023) has filed the
present petition seeking quashing of order dated 16.08.2023 passed by the
Sessions Judge, Bhopal and for clubbing of 23 F.I.Rs or any other proceedings
arising out of 23 FIRs and all the 23 FIRs be treated as one single FIR
No.85/10 dated 01.10.2010, in which, charge-sheet is filed on 14.11.2013 which
is registered as Special Case No.18/13 and is pending before the VIth
Additional Sessions Judge, Special Court (PC Act), Bhopal.
3. The petitioner-Brijlal Chauhan (W.P.No.18939/2023) is the then Joint
Registrar, Cooperative Societies and his tenure of posting was from 26.5.2006
to 10.7.2009. The petitioner-Ashok Mishra (W.P.No.23596/2023) is the then
Deputy Registrar, Cooperative Societies and his tenure of posting was from
26.5.2006 to 10.7.2009. The Cooperative Societies is a quasi judicial body and
in the entire transaction the role of petitioner is confined within the four corners
of Section 28(3) of the Madhya Pradesh Sahakari Krishi Aur Gramin Vikas
Bank Adhiniyam, 1999 [for short the "Act"], by which, the only responsibility
cast upon the petitioner in performing the role as a Deputy Registrar is that law
prescribes and permits the petitioner to pass an order of sale confirmation,
made earlier by the Banking Official in terms of section 26 of the Act.
CONTENTIONS:
4. According to the petitioners, in the year 2007 a common complaint was
filed by the agriculturists/farmers alleging illegality committed by the
Cooperative Bank in confirming the sale proceedings of mortgaged lands of
loan defaulters/farmers, which resulted in lodging of a single Preliminary
Enquiry No.03/08. On the basis of above single preliminary enquiry 28 FIRs
were lodged against petitioner-Brijlal Chauhan (W.P.No.18939/2023) and 24
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MAMTANI
Signing time: 17-10-2023
11:03:18
FIRs against petitioner-Ashok Mishra (W.P.No.23596/2023) at Police Station,
Special Police Establishment, Lokayukt Bhopal, District Bhopal for offences
under sections 420, 467, 468, 471, 120-B, 34 of IPC read with Sections 13(1)
(d) and 13(2) of Prevention of Corruption Act (hereinafter referred to as the
"PC Act"). The petitioners submit that all the FIRs are registered under the
s a me offences, the nature of crime is same and arising out of similar
transactions, but the intention of the Investigating Agency by conducting
separate investigation & prosecuting separate trials is malafide and thus
respondents are grossly misusing their powers and are wasting the precious
time of investigating agency and judiciary.
5. The petitioners further submitted that in T.T.Anthony Vs. State of
Kerala, (2001) 6 SCC 181 the Supreme Court in paragraph 20 has interpreted
the provisions of sections 154 and 173 of the Code of Criminal Procedure [for
short "Cr.P.C."]:, which is as under:-
"Under the scheme of the provisions of Sections 154,
155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only
the earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 Cr.P.C. Thus, there can
be no second F.I.R. and consequently there can be no
fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence
or the same cognizable offence or the same
occurrence or incident giving rise to one or more
cognizable offences."
6. The petitioners further submitted that in paragraph 27 of decision in
the case of T.T.Anthony (supra) the Supreme Court stated as under:-
"t h e sweeping power of investigation does not
warrant subjecting a citizen each time a fresh
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MAMTANI
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11:03:18
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) Cr.P.C. It would clearly be beyond
the purview of Sections 154 and 156 Cr.P.C. nay, a
case of abuse of the statutory power of
investigation in a given case."
7. The petitioners further submitted that in the case of Arnab
Goswami Vs. Union of India and others, [W.P.Crl. 130/2020] the Supreme
Court took reference of judgment in the case of T.T.Anthony (supra) and held
thus:-
"a fresh investigation or a second FIR on the basis of
the same or concerned cognizable offence would
constitute an "abuse of the statutory power of
investigation" and may be a fit case for the exercise
of power either under Section 482 of the Cr.P.C. or
Articles 226/227 of the Constitution"
8. Thus, the petitioners submit that as in above referred cases, all the
FIRs have been lodged on the common single complaint dated 08.8.2007,
arising out of identical transactions and thus, in view of law laid down in above
referred cases the same be quashed. They also submitted that charges slapped
on the petitioners are same, the acts of the alleged crime are same, points of
investigation are same, the nature of evidence is same, the points to be proved
by the witnesses are same, there are common witnesses, the provisions of law,
as alleged, are also same. He further submitted that respondents are filing
different charge-sheets, though the matter pertains to the same complaint and
the nature of offences, as alleged, relate to the same period and is of similar
type. Thus, there will be burden of 28 and 23 different cases on the trial Court
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MAMTANI
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and precious time of Court will be utilized in conducting trials of those cases,
which could have been avoided if the respondents would have filed single
charge-sheet. So, in the interest of justice and for all the parties, who are
concerned with this litigation including the common witnesses, the FIRs be
clubbed as it will save time, money and machinery involved in deciding the
cases. Thus, the petitioners pray that to balance the fundamental rights and
expansive power of Police, this Court may direct to consolidate all the
cases/FIRs. Therefore, petitioner-Brijlal Chauhan prayed that direction be
issued to club all the 28 FIRs and the same be treated as one single FIR
No.183/13 dated 29.6.2013, in which, charge-sheet has been filed on 30.6.2015
a n d registered as Special Case No.66/15 and is pending at the stage of
prosecution evidence before the First Additional Sessions Judge, Special Court
(PC Act), Bhopal for offences under sections 420, 467, 468, 471, 120-B, 34 of
IPC. The petitioner-Ashok Mishra prayed to club all the 23 FIRs and same be
treated to be single FIR No.85/2010 dated 01.10.2010 and registered as Special
Case no.18/13 pending before the Sixth Additional Sessions Judge (PC Act),
Bhopal.
9. Learned counsel for the respondents opposed the prayer and prayed
for dismissal of the writ petition. It is submitted that in each and every FIR the
farmer, land and loan transaction is different, so each FIR constitute separate
offence.
10. Heard the learned counsel for the parties and perused the record.
FINDINGS
11. Section 220 of Cr.P.C. reads as under:-"
"220. Trial for more than one offence.
(1) If, in one series of acts so connected together as
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MAMTANI
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to form thesame transaction, more offences than
one are committed by the same person, he may be
charged with, and tried at one trial for, every such
offence.
(2) When a person charged with one or more
offences of criminal breach of trust or dishonest
misappropriation of property as provided in sub-
section (2) of section 212 or in sub- section (1) of
section 219, is accused of committing, for the
purpose of facilitating or concealing the
commission of that offence or those offences, one or
more offences of falsification of accounts, he may
be charged with, and tried at one trial for, every
such offence.
(3) If the acts alleged constitute an offence
falling within two or more separate definitions of
any law in force for the time being by which
offences are defined or punished, the person
accused of them may be charged with, and tried at
one trial for, each of such offences.
(4) If several acts, of which one or more than
one would by itself or themselves constitute an
offence, constitute when combined a different
offence, the person accused of them may be charged
with, and tried at one trial for the offence
constituted by such acts when combined, and for
any offence constituted by any one, or more, of such
acts.
(5) Nothing contained in this section shall
affect section 71 of the Indian Penal Code (45 of
1860 )"
12. Learned counsel for the petitioners cited decisions in the cases of
Radhey Shyam Vs. State of U.P. , (1094) All.L.J. 666, In Re. District &
Sessions Judge, Raisen, (2005) 3 MPLJ 26 and Jamuna Devi Vs. District &
Sessions Judge and others, (2007) 1 GLT 148. These citations relate to
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MAMTANI
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transfer of session cases from one Sessions Court to another Sessions Court
and regarding to sections 408 & 409 of Cr.P.C. So, these citations are not of
any help to the petitioners.
13. Learned counsel for the petitioners further submitted that fresh
investigation by the Police in respect of the same incident is not permissible and
he relied on the case of T.T.Anthony (supra) wherein the Apex Court after
noting of provisions of Sections 154 to 157, 162, 169, 170 and 173 of Cr.P.C.
and considering the issue of striking a balance between citizen's right under
Articles 19 and 21 of the Constitution and expansive power of police to make
investigation, has held that there can be no second FIR and no fresh
investigation on receipt of every subsequent information in respect of the same
cognizable offence or same occurrence giving rise to one or more cognizable
offences. It has further been held that after registration of FIR under Section
154 of the Cr.P.C. in respect of commission of the cognizable offence, all such
subsequent information is covered by Section 162 of the Cr.P.C. and that
Officer Incharge of the Police Station has to investigate not merely the
cognizable offence reported 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 file one or more reports provided in Section 173 of Cr.P.C.
14. Learned counsel for petitioners further submitted that a fresh
investigation or a second FIR on the basis of the same or connected cognizable
offence would constitute an "abuse of the statutory powers of investigation,
and placed reliance upon decision in Arnab Goswami Vs. Union of India and
others, [W.P.No.Crl.130/2020]. He also relied on the judgment of Apex Court
in Chowdhury Bhajanlal Versus State of Haryana , AIR 192 SC 604. But,
the present case is not for quashing of an FIR. In instant cases, the relief sought
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MAMTANI
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by the petitioners is for clubbing of all FIRs in one FIR. So, this citation also
does not help the petitioner.
15. In Writ Petition No.7496/2021 [Dr.Pawan Tamrakar and
another Vs. M.P.Special Police Establishmeent and others] the Coordinate
Bench of this Court in paragraph 7 has held as under:-
"7 . Considering the above statutory provisions by
various judicial pronouncements, it is settled that
there can be no straightjacket formula for
consolidating or clubbing the FIR and Courts are
required to examine the facts of each case. A second
FIR in respect of same offence or different offences
committed in the course of same transaction is not
permissible. The second FIR on the basis of receipt of
information in respect of same cognizable offence or
the same occurrence or incident giving rise one or
more cognizable offences is not permissible. It is also
settled that the Courts are required to draw a balance
between the fundamental rights of the citizens under
Article 19 & 21 of the Constitution and expansive
power of the police to investigate a cognizable
offence. In a given case, second or successive FIR for
same or connected cognizable offence alleged to have
been committed in the course of the same transaction
in respect of which earlier FIR is already registered,
may furnish a ground for interference by the Court
but where the FIRs are based upon the separate
incident or similar or different offences or the
subsequent crime is of such magnitude that it does not
fall within the ambit and scope of the earlier FIR then
the second FIR can be registered. Where two incidents
took place at different point of time or involve
different person or there is no commonality and the
purpose thereof is different and the circumstances are
also different then there can be more than one FIR.
The Court is required to see the circumstances of a
given case indicating proximity of time, unity or
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MAMTANI
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proximity of case, continuity of action, commonality
of purpose of the crime to ascertain if more than one
FIR can be allowed to stand."
16. In the matter of State of Jharkhand Vs. Lalu Prasad Yadav ,
(2017) 8 SCC 1 the defalcations were from different treasury for different
financial year, amount involved was different, fake vouchers/allotment
letters/supply orders were prepared with the help of different sets of accused
persons, the Supreme Court has held that the separate trials are required to be
conducted. It has further been clarified that 'same offence' is different from
'same kind of offence' and has held that if 'same kind of offence' was
committed multiple times then each time it constitutes a separate offence and
therefore accused can be tried in different trials. It has also been clarified that
even if the modus operandi was same that would not make it a single offence
when offences were different.
17. Petitioners' counsel has also relied on the decision in the case of
Neeraj Datta Vs. NCT of Delhi, (2019) 14 SCC 311 wherein it has been
observed by the Apex Court as under:-
"Noting the divergence in the treatment of the
evidentiary requirement for proving the offence
under Sections 7 and 13(1)(d) read with Section
13(2) of Prevention of Corruption Act, 1988, the
Court referred the following question of law for
determination by a larger bench: "The question
whether in the absence of evidence of
complainant/direct or primary evidence of demand
of illegal gratification, is it not permissible to draw
inferential deduction of culpability/guilt of a public
servant under Section 7 and Section 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act,
1988 based on other evidence adduced by the
prosecution."
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Signed by: RAJESH
MAMTANI
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11:03:18
18. In the case of MS.P xxx Versus State of Uttarkhand and
another, 2002 LiveLaw (SC) 554 the Apex Court while dealing with section
220(1) of Cr.P.C. and issue relating to trial for more than one offence has
observed that if in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same person, he may
be charged with, and tried at one trial for, every such offence. It is not possible
to enunciate any comprehensive formula of universal application for the
purpose of determining whether two or more acts constitute the same
transaction. The circumstances of a given case indicting proximity of time, unity
or proximity of place, continuity of action and community of purpose or design
are the factors for deciding whether certain acts form parts of the same
transaction or not. A series of acts whether are so connected together as to
form the same transaction is purely a question of fact to be decided on the
aforesaid criteria. For several offences to be part of the same transaction, the
test which has to be applied is whether they are so related to one another in
point of purpose or of cause and effect, or as principal and subsidiary, so as to
result in one continuous action.
19. So, it is settled that subsequent FIRs for different offences
committed in the course of same transaction or offences arising as a
consequence of prior offence is not permissible, but the second complaint in
regard to the same incident filed as a counter complaint as also the second FIR
for the same nature of offence against same accused persons lodged by
different person or containing the different allegation is permissible.
20. Learned counsel for the petitioners submitted that on the basis of
common complaint lodged with the Lokayukta and on the basis of single
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preliminary enquiry No.03/08, the multiple FIRs in question on identical facts
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have been lodged against the petitioners.
21. It is true that common complaint was lodged and on the basis of
single preliminary enquiry all FIRs have been lodged against the petitioners. But,
on perusal of all FIRs it is found that each and every FIR has a separate and
distant act. The act of the petitioner is not a part of single transaction. In each
FIR the farmer (victim), land and loan transactions are different. Different
people, who have been defrauded by the petitioners, have lodged FIRs and,
therefore, each offence is a distant offence and cannot be treated to constitute
single series of fact/transaction. The acts of the petitioners are not part of single
transaction. Separate charge-sheets have been filed for different FIRs. In so
many cases separate charges have been framed and separate trial are being
conducted in different Courts. In some cases, number of prosecution witnesses
have been examined. As such the prayer for clubbing of subsequent 28 FIRs
against petitioner in Writ Petition No.18939/2023 with first FIR No.183/13 and
23 FIRs against petitioner-Ashok Mishra in W.P.No.23596/2023 with FIR
No.85/10 dated 01.10.2010 is unsustainable.
22. In view of aforesaid discussion, the present petitions deserve to be
dismissed, and are accordingly dismissed.
(SHEEL NAGU) (HIRDESH)
JUDGE JUDGE
RM
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Signed by: RAJESH
MAMTANI
Signing time: 17-10-2023
11:03:18
