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Judgment
Heard the parties.
The present quashing petition has been preferred to quash the FIR of Ahiyapur P.S. Case No.411/2017 dated 02.06.2017 for the offences punishable under Section 409 of the IPC, pending in the court of learned CJM, Muzaffarpur.
The prosecution case, as stated in the written statement of the Junior Engineer, Bihar Education Project, Muzaffarpur, is that on 28.03.2008, an amount of ₹54,000/- and on 31.03.2008, an amount of ₹1,33,000/- were credited to the account of Primary School, Majhauliya, Musahar Tola, Jhabapa, bearing Account No. 3484 with the Central Bank of India, Amnaur Branch, for construction of a kitchen shed and boundary wall. The then Headmaster, Shri Manoj Kumar Paswan (petitioner), allegedly withdrew ₹75,000/- on 03.04.2008, ₹ 50,000/- on 11.04.2008 and ₹62,000/- on 24.04.2008, totaling ₹1,87,000/-, but allegedly failed to construct the kitchen shed and boundary wall. Subsequently, vide Memo No. 4362 dated 19.10.2012 issued by the District Programme Officer (Establishment), a departmental proceeding was initiated against the petitioner. Thereafter, vide Memo No. Civil/1027/BEP, Muz. dated 02.06.2017, issued under the signature of the District Programme Officer, Primary Education and Sarva Shiksha Abhiyan, a direction was issued for lodging an FIR against the petitioner for recovery of the alleged defalcated amount along with accrued interest, totaling ₹4,03,073/-.
The grievance of the petitioner is that, in respect of the very same allegation relating to non-completion of construction work of the kitchen shed and boundary wall of Primary School, Manjhauliya Musahartola, an earlier FIR bearing Ahiyapur P.S. Case No.296 of 2009 dated 18.09.2009 had already been instituted against the petitioner for the offences punishable under Sections 409, 419 and 420 of the IPC.
The allegation in both the cases relates to the same amount allotted for construction of the kitchen shed and boundary wall of the school and the alleged failure to complete the said construction. The subsequent FIR has been registered on the basis of the same underlying transaction, with the only difference being that the subsequent FIR has been registered specifically under Section 409 of the IPC.
Learned counsel for the petitioner submitted that the subsequent FIR is not maintainable as the entire matter was already the subject matter of the earlier FIR. It is further submitted that the petitioner had explained that the construction could not be completed on account of encroachment over the school land and other difficulties. It is also submitted that the construction material purchased from the allotted amount was subsequently stolen.
It has further been submitted that the petitioner has already suffered departmental proceedings and suspension and has been ready throughout to pay back the amount. More importantly, it has been pointed out that, as reflected from Annexure P/6, the entire amount in question has already been paid by the petitioner.
Learned counsel for the petitioner has placed reliance upon the judgment of the Hon’ble Supreme Court as available through Rutvij Bhagat Singh Wakhare Vs. State of Maharashtra, 2026 SCC Online SC 1384, wherein the law relating to successive FIRs have been reiterated.
The law in this regard is very clear. There cannot ordinarily be a second FIR in respect of the same incident, occurrence or transaction. The test to be applied is the test of sameness. If the subsequent FIR relates to the same occurrence or forms part of the same transaction which was already the subject matter of the earlier FIR, the subsequent FIR cannot be permitted to give rise to a fresh investigation and prosecution.
The Hon’ble Supreme Court in Rutvij Bhagat Singh Wakhare Case (supra) has reiterated the principle laid down in T.T. Antony v. State of Kerala and other judgments that there cannot be successive FIRs in respect of the same cognizable offence or the same occurrence forming part of one transaction. At the same time, a subsequent FIR may be permissible where it relates to a distinct occurrence, a counter-version, a different offence arising out of a separate incident or a larger conspiracy.
Applying the aforesaid principle to the facts of the present case, this Court finds that the allegations in both the FIRs arise from the same transaction. The amount of Rs.1,87,000/- was allotted for construction of the kitchen shed and boundary wall of the same school. The allegation that the petitioner, being the then In-charge Headmaster, withdrew the amount, but failed to complete the construction, which was already the subject matter of Ahiyapur P.S. Case No.296 of 2009.
The subsequent FIR does not disclose any fresh or independent occurrence. It is also not a counter-case arising from a separate incident. The foundation of the allegations in both the cases is the same alleged withdrawal and alleged non-utilization of the amount allotted for the construction work.
Merely because the subsequent FIR mentions Section 409 of the IPC, whereas the earlier FIR contains Sections 409, 419 and 420 of the IPC, would not make the subsequent FIR a separate occurrence. The substance of the allegation and the transaction giving rise to the alleged offence have to be considered and not merely the penal sections, mentioned in the FIR.
The allegations contained in both the FIRs are Pari Materia, arising out of same transaction and founded upon the same set of facts and allegations.
The registration of the subsequent FIR, therefore, amounts to subjecting the petitioner to a second investigation and prosecution in respect of the same transaction. Such a course is impermissible in law and would amount to abuse of the process of the criminal justice system.
This Court also takes note of the fact that, as stated by learned counsel for the petitioner and supported by Annexure P/6, the amount in question has already been paid. The said circumstance, though not by itself determinative of the legality of the second FIR, is relevant while considering whether continuation of the subsequent criminal proceeding would serve any useful purpose. It would be pertinent to place the Annexure P/6, which is as under :-
It is not necessary for this Court, while exercising its jurisdiction under Section 482 of the Code of Cr.P.C., to examine the rival explanations regarding the circumstances in which the construction work could not be completed. The issue which is sufficient for disposal of the present application is that the subsequent FIR is founded upon the same transaction which had already been made the subject matter of the earlier FIR.
Once the earlier FIR had already set the criminal law in motion in respect of the alleged defalcation of the amount allotted for the construction work, a fresh FIR on the same set of facts could not have been registered merely by giving the allegation a different form or by referring to one of the offences already forming part of the earlier FIR.
In the opinion of this Court, permitting the prosecution arising out of Ahiyapur P.S. Case No.411 of 2017 to continue would amount to permitting a second investigation and prosecution in respect of the very same transaction. Such continuation would be contrary to the settled principle governing successive FIRs and would result in abuse of the process of the law.
Accordingly, FIR of Ahiyapur P.S. Case No. 411/2017 dated 02.06.2017 for the offences punishable under Section 409 of the IPC pending before learned CJM, Muzaffarpur along with all its consequential proceedings, qua, petitioner is hereby quashed and set aside.
Hence, this application stands allowed.
TCR (Trial Court Records), if any, be returned to the learned Trial Court alongwith the copy of this judgment.