Rajasthan High Court

Surendra Singh Rathore S/O Shri ... vs State Of Rajasthan on 9 September, 2022

Bench: Birendra Kumar

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                                                                    REPORTABLE
       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 4366/2022
Surendra Singh Rathore S/o Shri Indra Singh Rathore, Aged
About 56         Years, R/o     32, Tara Nagar-A, Jhotwara,                 Jaipur
Presently, CEO, Grameen Vikaas And Panchayati Raj Vibhag,
Biofuel Authority, Jaipur. (Petitioner Presently Confined In Central
Jail, Jaipur).
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Its Public Prosecutor.
                                                                   ----Respondent

For Petitioner(s) : Mr. V.R. Bajwa Senior counsel with Mr. Snehdeep Khayalia Mr. Manish Parmar For Respondent(s) : Dr. Vibhuti Bhushan Sharma, AAG assisted by Mr. Prakhar Gupta Mr. Tushar Pareek Ms. Charvi Patni Mr. Avinash Choudahry Mr. Prashant Sharma, Mr. Arvind Kumar, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR Order

Judgment reserved on : 01/09/2022 Date of Pronouncement : 09/09/2022

1. The petitioner is an accused in FIR No. 131/2022 dated

14.04.2022 registered with Pradhan Arakshi Kendra, Anti

Corruption Bureau, Jaipur District Bikaner for offences under

Sections 7, 7A, 8 and 12 of Prevention of Corruption Act, 2018 (in

short "P.C. Act") as well as under Section 120-B of IPC. The

petitioner has sought for quashment of aforesaid FIR on the

ground that FIR No. 123/2022 registered for offences under

Sections 7 and 7A of the P.C. Act as well as under Section 120-B

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of IPC on 08.04.2022 relates to identical allegations of same

transactions hence, the impugned FIR is second FIR for the same

cause which is not permissible. The second ground of challenge is

that admittedly the petitioner is a public servant and the offences

alleged to have been committed are relatable to suspected

recommendations made or decision taken by the petitioner in

discharge of his official functions and duties and therefore under

Section 17A of P.C. Act previous approval of the competent

authority is necessary to conduct any inquiry or investigation into

any offence alleged to have been committed by the petitioner.

Since the approval of the authority competent to remove the

petitioner from his office has not been taken in this case, the FIR

cannot be investigated as such, the FIR is not sustainable qua the

petitioner.

2. According to contents of the first FIR (123/2022) one Vipin

Parihar, Chief Marketing Officer of Fem Bio Fuel Private Limited,

accompanied with his business partner Deven Shah as well as

alongwith Satya Narayan Saini S.D. of Kusum Petro Chemicals

came to the office of Anti Corruption Bureau and submitted a

written complaint on 06.04.2022. The complaint states that the

petitioner who is Chief Executive Officer cum Project Director in

Bio Fuel Authority under the Department of Rural Development,

Government of Rajasthan, demanded bribe @ of Rs. 2 per litre for

sale of bio diesel. On the date of complaint, the aforesaid demand

was fixed at Rs. 15 Lakh per month. Further complaint is that the

petitioner demanded Rs. 5 Lakh for renewal of the licence and

extension of business at Baroda. The complainant stated that on

04.04.2022 he had met the petitioner in his office for renewal of

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his licence as well as permission for extension of his business and

the petitioner put the demand for such an approval rather the

petitioner put pressure that if the monthly amount fixed is not

paid to the petitioner, the licence would be cancelled. The

complainant stated that since he does not want to bribe the public

servant, hence the complaint. Accordingly the authorities of Anti

Corruption Bureau after necessary approval and preparation put a

trap on 07.04.2022. The complainant reached the office of

petitioner. The petitioner asked him to pay the money to one

Devesh Sharma who was waiting outside the office. Devesh

Sharma asked to put the money in his bag and closed the bag. As

per the direction of the petitioner Devesh Sharma was to carry the

bag directly to the house of the petitioner. Thereafter, other

formalities of arrest and seizure were completed. It also surfaced

that Devesh Sharma was in fact a taught of the petitioner and not

a contractual employee in the Authority. Mobile phone of the

petitioner and Devesh were also seized on the spot. It was

specifically stated in the FIR that on forensic examination of the

mobile phone of the petitioner and Devesh Sharma further details

of bribery may surface.

3. The impugned FIR was registered on 14.04.2022 for incident

which allegedly took place between 30.09.2021 to 12.04.2022.

The information of impugned FIR was allegedly received on

30.09.2021 wherein Mr. Shyam Prakash a constable in the Anti

Corruption Bureau informed to the DSP Mr. Paras Mal of the

Bureau that in the State of Rajasthan there is huge and deep

rooted corruption in the field of bio diesel. It is stated that the

petitioner takes bribe for granting licence to run bio fuel pump as

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well as extorts money from the pump owners and the bio fuel

suppliers to allow them run the business illegally. Mr. Nimba Ram,

proprietor of Gunjan bio fuel pump and his helper Ashish work as

middlemen between the petitioner and the needy persons.

Thereafter mobile phones of Nimba Ram and Ashish Kumar were

seized by the Bureau and after taking permission from the

competent authority, the same were put on surveillance. Their call

details and talks were heard and noted down which are mentioned

in the FIR from item no. 1 to 14. This court has carefully gone

through the call details in item no. 1 to 14, name of the petitioner

has not surfaced in all the item nor those call details reveal that

call details were for or on behalf of the petitioner or petitioner's

involvement.

4. In item No. 6 of the FIR it is mentioned that Mr. Ashish

informed to the petitioner that Mr. Gaurang, the proprietor of

Courtiyark industries has changed the Board of Directors without

information to bio fuel authority. In the circumstances, petitioner

stated that a notice be issued to Mr. Gaurang for change in the

constitution of the Board without permission. Nothing else is there

to even infer that anything was demanded to avoid the notice.

Another matter which directly relates to the petitioner contained in

item No. 10, this was call details dated 26.01.2022 wherein the

petitioner was allegedly found talking with Nimba Ram and was

saying that file of Shekhawatji has been placed. Though

Shekhawatji only paid four instead of five as promised.

Subsequently, the petitioner agreed on terms suggested by Nimba

Ram, which relates to the payment of bribe for doing work of

Shekhawatji.

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5. Learned Senior counsel appearing for the petitioner, Mr. V.R.

Bajwa, contends that this one is a classic case of misuse of power

by the Investigating Agency (Anti Corruption Bureau). The first

FIR relates to offence dated 8.4.2022 when one Devesh was

caught accepting bribe and it is stated that the bribe was accepted

for the petitioner. The second FIR which is challenged herein was

registered on 14.4.2022 wherein allegation against the petitioner

is that on 26.1.2022 his telephonic conversation revealed that

bribe was accepted for doing some favour to Shekhawatji. These

two identical offences are alleged to have been committed within a

span of six months and Section 219 Cr.P.C. permits trial of three

identical offences committed within the span of twelve months by

the same person though against different persons in a single trial.

Therefore, prejudice would be caused to the accused petitioner if

thrown to face investigation/ trial twice. Learned Senior counsel

contends that if one trial of the alleged two incidents are

permissible, there is no reason that one investigation would not

serve the purpose of justice nor the Investigating Agency has

stated any prejudice to the prosecution in the event of single

investigation. Learned Senior counsel next contends that Section

17A of the P.C. Act prohibits investigation against the petitioner

who is a public servant for the offences under the Act which is

relatable to any recommendation made or decision taken by the

public servant in discharge of his official functions or duties.

Learned Senior counsel has placed reliance on the case of T.T.

Antoney Vs. State of Kerala, (2001) 6 SCC 181; Babubhai &

ors. Vs. State of Gujarat, (2010) 12 SCC 254; Amitbhai

Anilchandra Shah Vs. CBI & ors., (2013) 6 SCC 348 and

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Prem Chand Singh Vs. State of U.P & Anr., in JT 2020 (2) SC

195 in support of his submission that in the facts and

circumstances of the case second FIR is not sustainable in law.

Learned Senior counsel has also relied on the case of Yashwant

Sinha & ors. Vs. CBI, (2020) 2 SCC 338 to contend that

investigation of the case without prior approval as required under

Section 17A of the P.C. Act is not permissible.

6. Dr. V.B. Sharma, learned Additional Advocate-General for the

respondents opposed the prayer of the petitioner and asserts that

the impugned FIR relates to altogether different incidents said to

be committed against different persons. Moreover, impugned FIR

encompasses more offences and more offenders within its sweep.

Therefore, the impugned FIR cannot be treated as second FIR for

the same incident or occurrence. Learned Additional Advocate

General contends that permission for investigation of the FIR as

required under Section 17A of the P.C. Act is curable defect and

not a ground for quashing the FIR. Reliance has been placed on

the case of Anju Choudhary Vs. State of U.P., (2013) 6 SCC

384 wherein the Hon'ble Supreme Court stated "the Court in

order to examine the impact of one or more FIRs has to rationalise

the facts and circumstances of each case and then apply the test

of "sameness" to find out whether both FIR relates to the same

incident and to the same occurrence, are in regard to incidents

which are two or more parts of the same transaction or relate

completely to two distinct occurrences. If the answer falls in the

first category, the second FIR may be liable to be quashed.

However in case the contrary is proved, whether the version of the

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second FIR is different and they are in respect of different

incident/crimes, the second FIR is permissible."

7. Learned Additional Advocate-General has placed reliance on

the judgment in Nirmal Singh Kahlon Vs. State of Punjab &

ors., (2009) 1 SCC 441 in support of his contention that if

"canvass of the two FIRs are absolutely different, the number of

accused in both the FIRs are also different, the second FIR would

be permissible". He has also placed reliance on a judgement of

this Court in Sourabh Garg Vs. State of Rajasthan, S.B. Cr.

Misc. Petition No. 6337/2021 decided on 21.1.2022. Learned

counsel has placed reliance on the judgment in Neeharika

Infrastructure Private Limited Vs. State of Maharashtra & ors.,

(2021) SCC Online 315 for his submission that ordinarily the Court

should not usurp the jurisdiction of the police to investigate the

case. The power under Section 482 Cr.P.C is very wide but

requires the Court to be cautious. It castes onerous and more

diligent duty on the court to apply the settled parameters which

are required to be considered while quashing the FIR.

8. In T.T. Antoney (supra), the Hon'ble Supreme Court said that

before interference with the statutory right of police to make

investigation into cognizable offence pursuant to lodging of FIR, a

just balance has to be struck between citizens right under Article

19 and 21 of the Constitution and expansive power of police to

make investigation. After registering the FIR and commencement

of investigation, registration of second FIR or successive FIRs in

respect of the same incident and crime and making of fresh

investigation pursuant thereto would be irregular which call for

interference by the High Court under Article 226/227 or Section

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482 Cr.P.C and interference by the Supreme Court under Article

136 to prevent abuse of the statutory power of investigation or

otherwise to secure the ends of justice.

9. In the case on hand, investigation of the first FIR was going

on then it surfaced that the petitioner had demanded/accepted

bribe from some Shekhawatji also for showing some undue favour

to Shekhawatji.

10. In Babu Bhai (supra), the Hon'ble Supreme Court observed

as under:

20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In- Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer Incharge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.

21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes

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forward with a different version or counter claim, investigation on both the FIRs has to be conducted.

11. In Amitbhai case (supra), the first FIR was lodged for

encounter killing of two persons and second FIR was for the third

encounter killing. Both the incidents were carried out under single

conspiracy, the respondent CBI was not able to show as to how

the prosecution would be prejudiced if second FIR was quashed.

12. In the case on hand, there is allegation of conspiracy for

receiving bribe for undue favour. The first FIR was also registered

for offence under Section 120B IPC, in the second FIR offences

under Section 8 and 12 of the P.C. Act were added. Under Section

8 of P.C. Act a person who attempts or bribe a public servant is

punishable. Under Section 12 which relates to abatement of the

offence under the Act which is also punishable. These two offences

are not attracted against the petitioner.

13. In Prem Chand Singh (supra), the first FIR was filed

challenging general power of attorney of respondent and selling

his land. The second FIR was filed with same substratum with the

only difference that this time, Section 467, 468 and 471, 113 were

also added, the Hon'ble Supreme Court held that since substratum

of the two FIRs are same, second FIR was not justified merely

because of additions of Section 467, 468 and 471 IPC.

14. In Anju Chodhary (supra), the Hon'ble Supreme Court stated

as under:

"15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all

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cases. This will always be a mixed question of law and facts depending upon the merits of a given case."

15. In the case on hand, the prosecution case is that the

petitioner was trapped while accepting bribe through his agent on

7.4.2022 for showing some favour to Mr. Vipin Parihar in discharge

of his official duties, the second FIR relates to an incident dated

21.1.1022 wherein the petitioner allegedly accepted bribe from

some Shekhawatji for showing him favour in official capacity.

Both the offences are identical in nature and committed within a

very short span of time. The second incident which was earlier to

the subject matter of the first FIR could have been investigated in

the first FIR itself as one trial of the two charges was permissible

under the law. Section 219 Cr.P.C. reads as follows:

219. Three offences of same kind within year may be charged together.

(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

16. On bare reading of the aforesaid provision, it is evident that

joint trial of the alleged offence in the second FIR is permissible

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according to law along with the offence alleged in the first FIR. For

this reason also, the second FIR against the petitioner is abuse of

process of law. If the matter is examined from the angle of

conspiracy, in both the FIRs allegation of conspiracy for

commission of same set of offences is there against the petitioner,

therefore, this case is covered by the judgment in Amit Bhai case

(supra). The respondents have not shown any prejudice which

would be caused in the event of quashing of the second FIR. The

court is of the opinion that abuse of power by the Investigating

Agency would certainly cause prejudice to the petitioner,

therefore, the impugned FIR stands hereby quashed qua the

petitioner only.

17. Section 17A of the P.C. Act reads as follows:

"17A. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c)in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. "

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18. It is not in dispute that second FIR is not a case wherein the

petitioner was arrested while accepting bribe. Therefore, prior to

approval by the competent authority to investigate the case was

must and without prior approval, the impugned FIR cannot be

investigated. This view finds support from the judgement in

Yashwant Singh (supra), relevant portion is reproduced below:

"117. In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is Clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the Petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first Respondent-CBI, is done after Section 17A was inserted. The complaint is dated 04.10.2018. Paragraph 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paragraphs 6 and 7 of the complaint are relevant in the context of Section 17A, which reads as follows:

6. We are also aware that recently, Section 17(A) of the act has been brought in by way of an amendment to introduce the requirement of prior permission of the government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the Accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the government Under Section 17(A) of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this Section within a period of three months, which

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may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.

118. Therefore, Petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission Under Section 17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the Statute Book and it constitutes a bar to any inquiry or enquiry or investigation. The Petitioners themselves, in the complaint, request to seek approval in terms of Section 17A but when it comes to the relief sought in the Writ Petition, there was no relief claimed in this behalf."

19. The cases relied upon by the learned counsel for the

respondents are not applicable in the peculiar facts and

circumstances of the case as discussed above.

In Anju Choudhary (supra), the first FIR 145/2007 was

registered on 3.2.2007 for an incident of arson committed in the

shops on 27.1.2007. On the same day, a condolence meeting was

held for murder of a Hindu boy which was attended by the

accused persons of second FIR. In the condolence meeting, hate

speech, communal and provoking speeches were made by some of

the participants which created disharmony between two

communities and another act of burning of shops, houses,

godowns and vehicles were committed. In the background of the

facts, aforesaid, the second FIR was found maintainable because

the second FIR originated from quite a different incident and

different persons were involved as well as question of larger