Patna High Court
Sunil Kumar Srivastava vs The State Of Bihar And Ors on 1 May, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15716 of 2016
Arising Out of PS. Case No.-52 Year-2013 Thana- CHAPRA TOWN District- Saran
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Sunil Kumar Srivastava Son of Late Prem Shankar Lal Srivastava R/o
Mohalla Salempur Madho Bihari Lane, P.S. Chhapra Town, District Saran
... ... Petitioner/s
Versus
1. The State of Bihar
2. Chief Manager SBI Chapra Branch, Chapra
3. Om Jee Prasad Son of Murari Prasad R/o Mohalla Sahebganj, Sonarpatti,
P.S. Chhapra Town, District Saran
4. Shyam Sundar Chaudhary @ Shyam Chaudhary Son of Late Radheshyam
Chaudhary R/o Mohalla Katra Bazar, P.S. Bhagwan Bazar, District Saran
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Dineshwar Mishra, Advocate
Mr. Rohan Priyam Sahay, Advocate
For the SBI : Mr. Anjani Kumar Mishra, Advocate
: Mr. Vijay Bardhan Pandey, Advocate
For the Opposite Party/s : Mr. Shailendra Kumar Singh App
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 01-05-2024
1. This application preferred for quashing of
the order dated 05.03.2016 passed in Criminal Revision
No. 18 of 2015, as passed by the learned 5 th Additional
Sessions Judge, Saran at Chhapra and the order dated
21.01.2015
passed by learned Chief Judicial Magistrate,
Saran at Chhapra in connection with Chhapra Town P.S.
Case No. 52 of 2013.
2. The prosecution case in brief, as appears
from Chhapra Town P.S. Case No. 52 of 2013, which
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
was instituted on the written report dated 22.02.2013 of
one Bhola Nath Gupta Chief Manager S.B.I., Chhapra
Main Branch in which the copy of complaint made by the
Opposite Party No. 2 to the Bank was also annexed, that
during course of voucher verification on 07.02.2013, 14
vouchers were found missing and from enquiry it
transpired that from Account No. 30180088441 of M/s.
Brijwasi Bullians and Jewelers Private Limited at SBI,
Lucknow Branch a total sum of Rs. 30,00,000/- (Thirty
Lakhs) vide seven deposit vouchers was credited by the
Petitioner (the then Senior Assistant at the SBI Chhapra
Main Branch) and the entry was found authorized by
Cash Officer Opposite Party No. 3 and it was further
found that from another account of M/s. Brijwasi
Bullians & Jewelers Private Limited bearing Account No.
18063757714 at SBI Lucknow Branch, a total sum of
Rs. 30,00,000/- (Thirty Lakhs) had been debited vide
seven debit vouchers, and the said debit and its approval
was said to be done by the Petitioner and Opposite Party
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
No. 3. It was further stated in the report that on
07.02.2013, M/s. Brijwasi Bullians & Jewelers Private
Limited instituted a complaint by Fax in the Bank that
the debited amount of Rs. 30,00,000/- (Thirty Lakh)
from his account no. 10863757714 was unauthorized,
as such the amount be credited in his said account. It
has been further stated by the informant that on
enquiry, no satisfactory reply was given by the Petitioner
and Opposite Party no. 3 but on 11.02.2013, a sum of
Rs. 30,06,000/- (Thirty Lakh & Six Thousand) has been
got deposited in the over draft account no.
10318461651 standing in the name of Petitioner and on
the same day that very amount was credited from
account of Petitioner in the Account No. 10863757714
of M/s. Brijwasi Bullians & Jewelers Private Limited,
whereafter complainant withdrew his complaint made to
the Bank. It has been further stated that the petitioner
did not follow the direction of the Bank and
unauthorizedly acted and subsequently got deposited the
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
debited amount which amount to misappropriation of
Bank money. It has been further stated that one
customer Omjee Prasad (Opposite Party No. 2) had filed
a complaint received by Bank on 19.02.2013 in which he
alleged that he had handed over a sum of Rs.
41,60,000/- (Forty One Lakh & Sixty Thousand) to the
Petitioner on 05.02.2013 for being deposited in Account
No. 30180088441 which stood in the name of M/s.
Brijwasi Bullians & Jewelers Private Limited but the
amount was not credited in the said account. It has been
said by the informant that although Opposite Party No. 2
had not shown the receiving voucher to the Bank.
3. In view of aforesaid factual allegations,
Chhapra Town P.S. Case No. 52 of 2013 was lodged on
20.02.2013 which upon investigation found false and
charge-sheet submitted by exonerating petitioner.
4. Learned counsel appearing for the
petitioner submitted that the complainant personally
lodged a criminal complaint case with same facts and
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
allegations which was registered as complaint Case No.
338 of 2013 which was sent to police to investigate
matter after lodging FIR under Section 156(3) of the
Cr.P.C. It is submitted that FIR regarding same
occurrence had already lodged by Bank which was
registered as Chhapra Town P.S. Case No. 52 of 2013,
where investigating officer of this case without
registering the another FIR, as directed, investigate the
complaint alongwith Chhapra Town P.S. Case No. 52 of
2013. This fact is very clear from Annexure-V, which is
charg-sheet of Chhapra Town P.S. Case No. 52 of
2013, where it is clearly mentioned in the charge-sheet
submitted by police that Complaint Case No. 338 of
2013 was also examined. It is submitted that the
learned Additional Sessions Judge through impugned
order upheld the order of learned C.J.M. Saran at
Chhapra dated 21.01.2015 as to lodge FIR against
complaint Case No. 338 of 2013 also which was sent to
police by exercising the power under Section 156 (3) of
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
the Cr.P.C., and if it become so, it would amount to
lodging second FIR regarding same occurrence and also
amounting to fresh investigation on receipt of
subsequent information which is not permissible under
law.
5. Learned counsel in support of his
submissions referred the judgment of Hon'ble Apex
Court as reported in the matters of T.T. Antony vs.
State of Kerala and others [(2001) 6 SCC 181]. It
is further submitted by learned counsel that the lodging
of this FIR in terms of impugned order would only
amount to misuse of the process of Court of law and is
nothing but a malicious prosecution and therefore, the
impugned order is fit to be quashed/set aside in terms of
ratio as decided by Hon'ble Supreme Court in the case of
State of Haryana and Others vs. Bhajan Lal and
Others reported in 1992 Supp (1) Supreme Court
Cases 335.
6. Learned counsel appearing for the State
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
Bank of India submitted that the cash in issue of
complainant was received after six days. He also
submitted that the petitioner is a bank employee, who
was exonerated from allegation in departmental
proceedings.
7. It would be appropriate to reproduce the
paragraph no. 102 of the Bhajan Lal Case (supra),
which reads as under:
"102. In the backdrop of the
interpretation of the various relevant provisions
of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code
which we have extracted and reproduced above,
we give the following categories of cases by way
of illustration wherein such power could be
exercised either to prevent abuse of the process
of any court or otherwise to secure the ends of
justice, though it may not be possible to lay
down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in
the first information report or the complaint,
even if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the
first informant report and other materials, if any,
accompanying the FIR do not disclose a
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint and the
evidence collected in support of the same do not
disclose the commission of nay offence and
make out a case against the accused.
(4) Where, the allegations in the
FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which no
prudent persons can ever reach a just conclusion
that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
8. It would be appropriate to reproduce the
paragraph nos. 18, 19 & 20 of T.T.Antony Case
(supra), which read as under:
"18. An information given under sub-section (1)
of Section 154 CrPC is commonly known as first
information report (FIR) though this term is not
used in the Code. It is a very important
document. And as its nickname suggests it is the
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
earliest and the first information of a cognizable
offence recorded by an officer in charge of a
police station. It sets the criminal law in motion
and marks the commencement of the
investigation which ends up with the formation
of opinion under Section 169 or 170 CrPC, as
the case may be, and forwarding of a police
report under Section 173 CrPC. It is quite
possible and it happens not infrequently that
more informations than one are given to a police
officer in charge of a police station in respect of
the same incident involving one or more than
one cognizable offences. In such a case he need
not enter every one of them in the station house
diary and this is implied in Section 154 CrPC.
Apart from a vague information by a phone call
or a cryptic telegram, the information first
entered in the station house diary, kept for this
purpose, by a police officer in charge of a police
station is the first information report -- FIR
postulated by Section 154 CrPC. All other
informations made orally or in writing after the
commencement of the investigation into the
cognizable offence disclosed from the facts
mentioned in the first information report and
entered in the station house diary by the police
officer or such other cognizable offences as may
come to his notice during the investigation, will
be statements falling under Section 162 CrPC.
No such information/statement can properly be
treated as an FIR and entered in the station
house diary again, as it would in effect be a
second FIR and the same cannot be in
conformity with the scheme of CrPC. Take a
case where an FIR mentions cognizable offence
under Section 307 or 326 IPC and the
investigating agency learns during the
investigation or receives fresh information that
the victim died, no fresh FIR under Section 302
IPC need be registered which will be irregular; in
such a case alteration of the provision of law in
the first FIR is the proper course to adopt. Let
us consider a different situation in which H
having killed W, his wife, informs the police that
she is killed by an unknown person or knowing
that W is killed by his mother or sister, H owns
up the responsibility and during investigation the
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
truth is detected; it does not require filing of
fresh FIR against H -- the real offender -- who
can be arraigned in the report under Section
173(2) or 173(8) CrPC, as the case may be. It
is of course permissible for the investigating
officer to send up a report to the Magistrate
concerned even earlier that investigation is being
directed against the person suspected to be the
accused.
19. The scheme of CrPC is that an officer in
charge of a police station has to commence
investigation as provided in Section 156 or 157
CrPC on the basis of entry of the first
information report, on coming to know of the
commission of a cognizable offence. On
completion of investigation and on the basis of
the evidence collected, he has to form an
opinion under Section 169 or 170 CrPC, as the
case may be, and forward his report to the
Magistrate concerned under Section 173(2)
CrPC. However, even after filing such a report, if
he comes into possession of further information
or material, he need not 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; this is the import of sub-section (8) of
Section 173 CrPC.
20. From the above discussion it follows that
under the scheme of the provisions of Sections
154, 155, 156, 157, 162, 169, 170 and 173
CrPC only the earliest or the first information in
regard to the commission of a cognizable offence
satisfies the requirements of Section 154 CrPC.
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. On receipt of
information about a cognizable offence or an
incident giving rise to a cognizable offence or
offences and on entering the FIR in the station
house diary, the officer in charge of a police
station has to investigate not merely the
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
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 as provided in Section 173 CrPC."
9. In view of aforesaid factual and legal
submissions, it appears that while submitting the
charge-sheet in Chapra Towon P.S. Case No. 52 of 2013
dated 22.02.2013 police had also taken note of
Complaint Case No. 338 of 2013 and thereafter, charge-
sheet was submitted on 30.10.2013 through charge-
sheet no. 231 of 2013, any subsequent lodging of FIR in
terms of impugned order of learned C.J.M., which was
upheld by the order of Revisional Court vide order dated
21.01.2015 through impugned order would only amount
to lodge subsequent FIR regarding same occurrence,
which is not permissible under law as as per ratio settled
by Hon'ble Supreme Court in T.T. Antony Case
(supra).
10. In view of aforesaid, the impugned order
dated 05.03.2016 passed by the learned 5 th Additional
Sessions Judge, Saran at Chhapra in Criminal Revision
Patna High Court CR. MISC. No.15716 of 2016 dt.01-05-2024
No. 18 of 2015 and the order dated 21.01.2015 passed
by the learned Chief Judicial Magistrate, Saran at Chapra
in Chapra Town P.S. Case No. 52 of 2013, qua
petitioner with all its consequential proceedings, are
hereby quashed and set aside.
11. Hence, this application stands allowed.
12. TCR (Trial Court Records), if any, be
returned to learned trial court alongwith the copy of this
judgment, immediately.
(Chandra Shekhar Jha, J)
Archana/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 02.05.2024
Transmission Date 02.05.2024
