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TMI Blog2018 (6) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... to quash the FIR in Crime No.RC MA1 2016 A0052 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The 3rd accused has filed Crl.O.P.No.410 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0051 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The same accused (A-3) filed Crl.O.P.No.1622 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0052 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The 4th accused filed Crl.O.P.No.560 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0051 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The 5th accused filed Crl.O.P.No.561 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0051 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. 3. According to the petitioners, the Income Tax Authorities conducted search operations o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial custody. Subsequently, on the same date, the other accused A-2, A-4 and A-5 were also arrested. On 21.12.2016, the respondent agency sought for police custody of A-2, A-4 and A-5, but the said application was returned by the learned Principal Special Judge for CBI Cases, (VIII Additional City Civil Court), Chennai for rectifying certain defects. The Court also did not remand A-2 on that day. Subsequently, on 23.12.2016, the respondent agency filed another application seeking police custody of all the accused(A1 to A5) in RC MA1 2016 A0040 of CBI ACB, Chennai, but the same was dismissed by the concerned Court on 30.12.2016 After the concerned trial Court rejected the prayer for police custody on 30.12.2016, the respondent agency registered two FIRs namely, FIR No.RC MA1 2016 A0051 and FIR No. RC MA1 2016 A0052 on the same day viz., 30.12.2016 at 15.00 and 15.10 hours respectively to circumvent the rejection order passed by the Special Judge for CBI Cases and to secure police custody. 6. The petitioner further contended that while the investigation was going on in the above said FIR No. RC MA1 2016 A0040, the respondent agency registered another FIR No. RC MA1 2016 A0051 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of public servants. Thus, the petitioners seek to entertain the petitions filed by them and to quash the above said two FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 registered by the respondent agency. 8. On the other hand, opposing the claim of the petitioners, the learned Special Public Prosecutor for CBI Cases contended that the first accused was actively involved in converting unaccounted cash held by him and his partners, namely, accused 4 and 5 in to Gold bars through the second accused with the assistance of third accused. Further, the Income Tax Department conducted searches on 8/9.12.2016 in the premises of the second accused and seized 30 Kg gold bars worth about Rs.9 Crores and a sum of Rs.2 Crores in demonetized currency belonging to A-1, A-4 and A-5. The unaccounted cash of Rs.11 Crores in demonetized currency was provided by A-1 to A-2 through A-3 for purchase of gold bars. Accordingly, A-2 Premkumar converted Rs.9 Crores into 30 Kg of gold bars and another Rs.2 Crores in demonetized currency was kept ready for conversion into gold bars. Thus, the accused persons in collusion with the unknown Bank Officials purchased gold bars to the tune of 30 Kgs by using unacc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy seized at Chennai and the other CBI case RC.MA1 2016 A0040 was registered on 19.12.2016 on the seizure of Rs.24 crores in new Rs.2000/- denomination currency at Vellore. Thus, the allegations in both the cases are different and different transactions and place of seizure is also different i.e., one at Chennai and other at Vellore. Further, the IT Department also made seizures in different place and under different panchanamas. Hence, there is no abuse of process of the Court and Crime No.RC.MA1 2016 A0051 is not liable to be quashed and there is no violation of any right envisaged under the Constitution of India in remanding the accused persons in this case. Contrary to the claim of the petitioner, the allegations mentioned in the FIRs are not one and the same if the Test of 'Sameness' is applied to the case as laid down in "Babubhai Vs. State of Gujarat and other". The cases are distinct and separate transactions and connected only by the common accused. 9. The learned Special Public Prosecutor for CBI Cases further contended that the allegations against the accused is not mere holding of demonetized currency notes, but about the method adopted by them to process the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayer for police custody of the petitioners in FIR No.RC MA1 2016 A0040 on 30.12.2016 is not proper and the same amounts to abuse of process of law. It is further contended that the entire allegations rests upon the search and seizure carried out by Income Tax Department and the said operation is comprised in singular and common assessment file. The learned counsel for the petitioners further pointed out that in the first FIR registered in RC MA1 2016 A0040, it is averred that the seizure of Rs.24 Crores in new currency from the vehicle in Vellore on 09.12.2016 was effected pursuant to the search and seizure carried out at the premises of A-1 to A-3. As such, the petitioners contended that the first FIR registered in RC MA1 2016 A0040 is comprehensive in nature and covers the seizures, which have been subsequently made part of two separate FIRs RC MA1 2016 A0051 and RC MA1 2016 A0052. Thus, the petitioners contends that the registration of two subsequent FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 is improper, illegal and without jurisdiction. 12. Further, pointing out the admission of the respondent in the Memorandum of objection filed in the above said Crl.OPs, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, provision under which the accused are charged, the name of the accused and other relevant things. 16. On perusal of the contents of the FIR, if it is made out that the subsequent FIRs relates to same offence or connected offence, then the Court has to interfere so as to uphold the provision of Section 154 Cr.P.C. and quash the subsequent FIR giving liberty to add the allegation as supplementary to the first FIR. 17. Admittedly, in the case on hand, the accused involved are one and the same. The first FIR No.RC MA1 2016 A0040 dated 19.12.2016 was lodged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988 and subsequent two FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 dated 30.12.2016 was lodged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. In FIR No.RC MA1 2016 A0040 the suspected offence has been shown as criminal conspiracy, cheating and criminal breach of trust. The date of suspected offence is 08.12.2016 and entry taken on 19.12.2016. The place of occurrence is alleged to be Chennai and Vellore. The first para of information shows that the information was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation on receipt of every subsequent information in respect of same cognizable offence. This according to the petitioner is not permissible as the same is violative of Article 21 of the Constitution. In support of the said contention, the learned counsel for the petitioners relied upon the ruling of the Apex Court reported in 2001 (6) SCC 181 in T.T. ANTONY Vs. STATE OF KERALA AND OTHERS, wherein it has held as follows:- 19. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. 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 evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 underway or final report under Section 173(2)has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482Cr.P.C. or under Article 226/227 of the Constitution. 19. Similarly, the petitioners also relied upon the Apex Court Ruling reported in 2013 (6) SCC 348 in AMITBHAI ANILCHANDRA SHAH Vs. CENTRAL BUREAU OF INVESTIGATION AND ANOTHER, wherein it has held as follows:- 37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relying upon the ruling reported in 2010 (12) SCC in BABUBHAI Vs. STATE OF GUJARAT AND OTHERS contended that subsequent to the registration of an FIR, any further complaint in connection with the same offences or connected offences relating to the same incident or incidence which form part of the same transaction is not permissible. In the said Ruling it is held as follows:- "14. In T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC 181, this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court 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. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Thus, there is an obligation on the part of a police officer to register the information received by him of commission of a cognizable offence. The two-fold obligation upon such officer is that (a)he should receive such information and (b) record the same as prescribed. The language of the section imposes such imperative obligation upon the officer.An investigating officer, an officer-in-charge of a police station can be directed to conduct an investigation in the area under his jurisdiction by the order of a Magistrate under Section 156(3) of the Code who is competent to take cognizance under Section 190. Upon such order, the investigating officer shall conduct investigation in accordance with the provisions of Section 156 of the Code. The specified Magistrate, interms of Section 190 of the Code, is entitled to take cognizance upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 14. On the plain construction of the language and scheme of Sections 154,156 and 190 of the Code, it cannot be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code." 22. Applying the principles laid down in the above said rulings, it is to be seen in the present case as to whether the occurrence alleged in the subsequent FIRs are one and the same incident as stated in first FIR or continuous one or part of the same transaction. A cumulative and conjoint reading of the two impugned FIRs with FIR No.RC MA1 2016 A0040 would leave no manner of doubt that they arise out of a common substratum as they have been registered on purported information received from the Income Tax Department regarding the search and seizure of currency in new denomination concerning the same set of accused. On the face of it, the first FIR in RC MA1 2016 A0040 itself refers to all the search and seizure carried out by the Income Tax Department, which now form the basis for registering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of case under Sections 13(2) r/w 13(1)(d) of PC Act,1988 as well as Sections 409, 420, and 120-B IPC is redundant in the eye of law. The said contention, in the light of available materials on record is to be accepted. 25. The learned counsel appearing for the petitioners relying upon the ruling reported in 2010 (10) SCC 660 in ASOKE BASAK Vs. STATE OF MAHARASTRA, contended that to Constitute the offence of criminal breach of trust, the following ingredients must be satisfied. (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use of dispose of that property or wilfully suffer any other person to do so; and (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. However, going through the materials on record, it is apparent that no such ingredient is available in the present case. 26. Likewise, the learned counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. Thus, the learned Special Public Prosecutor for CBI Cases contends that the subsequent FIRs is in order and there is no illegality in registering them. 29. However, a careful perusal of the stand taken by CBI would have no manner of doubt that the reliance has solely been placed on the searches/seizures carried out by the Income Tax Department on 8/9.12.2016. Therefore, to contend that the allegations mentioned in FIR are different and constitute distinct and separate transaction, is absolutely untenable. Pertinently, no independent or separate materials have been gathered by the respondent apart from the proceedings carried out by the Income Tax Department. Further the averments made by the respondent that the petitioners have hatched a conspiracy with unknown public servants also cannot be countenanced in the absence of any public servant or Bank being identified so far. The learned counsel for the petitioner relying upon the ruling reported in 1982 (1) SCC 561 in STATE OF WEST BENGAL AND OTHERS Vs. SWAPAN KUMAR GUHA AND OTHERS, contended that general, vague allegation cannot be made the basis for initiating legitimate investigation. In the said Ruling it is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above dictum of law laid in SWAPAN KUMAR GUHA'S CASE(supra) has subsequently been followed by the Apex Court in 2003 (3) SCC 11 IN AJAY MITRA Vs. STATE OF M.P. AND OTHERS. As stated earlier in the case on hand there is no acceptable materials on record to show that the offence alleged in the subsequent FIRs are distinct and different from the one alleged in the first FIR. As such the dictum laid down in the above said ruling will squarely apply to the facts of the case on hand. 31. Thus, it is clear that in the present case on hand, the source of information is one and the same. The accused are also same persons. It is also apparent that the offence alleged in the first FIR and offences covered in the subsequent FIRs are connected and arising out of the same transaction and as such registering of subsequent FIRs is not proper. Thus, the claim of the petitioners that lodging of two subsequent FIRs in connection with the same and connected offences as mentioned in first FIR in Crime No.RC MA1 2016 A0040 is not permissible as Section 154 of Cr.P.C. do not permit the registration of subsequent FIRs for the same offence or connected offence. In the light of the above said discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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