Rama Shankar Prasad vs State Of Jharkhand

Heard Mr. Anil Kumar Sinha, Senior counsel appearing on behalf of the petitioner, assisted by Mr. Navneet Sahay, Advocate and Mr. Sanjeet Nayak, Advocate.

Heard Mr. Jai Prakash, Senior counsel appearing on behalf of the opposite party - State along with Mrs. Sadhna Kumar, Advocate.

The instant application has been filed on behalf of the petitioner for quashing of F.I.R. being Saraikela P.S. Case No.98/2013 dated 28.8.2013, corresponding to G.R. No.844/2013, lodged for the offences under Sections 222/224/225 (A) of the Indian Penal code read with Section 17 of the C.L.A. Act, said to be pending in the court of Learned Chief Judicial Magistrate Saraikela.

Counsel for the petitioner while advancing his argument submits that the petitioner was posted as Assistant Jailor in Seraikela Jail and the F.I.R. bearing P.S. Case No.63 of 2011 dated 18.8.2011 was filed by the petitioner corresponding to G.R. Case No.644 of 2011, which is related to the various persons, who had fled from jail. In the said case, F.I.R. was registered against six fled prisoners and also against some other officers who were posted in the jail and the present petitioner was the informant of the previous FIR.

Counsel for the petitioner submits that from perusal of the present F.I.R. bearing Seraikela P.S. Case No.98 of 2013 dated 28.08.2013, it appears that during the investigation of the earlier case bearing Seraikela P.S. Case No.63 of 2011, it had come to light that, in the statement given by the accused namely Balram Sahu, it was alleged that the petitioner, who was the Assistant Jailor at the relevant point of time, had taken a bribe of Rs.7,00,000/- to manage the entire show, so that six prisoners, could flee away. It has been further alleged in the present F.I.R. that the petitioner has himself fled away after the aforesaid evidence came to light and he is still absconding.

He further submits that in the present F.I.R. itself, the aforesaid evidence against the petitioner which has come to light during investigation in P.S. Case No.63 of 2011 has been mentioned, and it has also been mentioned that the allegation against the petitioner has been found correct and that there is sufficient material for submission of charge sheet against the petitioner. In the present F.I.R., it has been mentioned that since the petitioner is the informant of the earlier case, and the petitioner cannot be made a witness to the occurrence as well as a co-accused in the earlier case, therefore, appropriate direction has been issued by the higher authority to lodge the present case against the petitioner.

The counsel submits that the earlier F.I.R. was lodged as back as on 18.08.2011 and the present F.I.R. has been lodged on 28.08.2013 making the petitioner as accused, although, it was the petitioner himself, who was the informant of the entire incident which has taken place in the jail. He submits that there is no explanation in connection with the delay which has occurred in filing of the instant case. He further submits that if the accused person in the earlier case had made some statement under Section 161 of the Code of Criminal Procedure then under such circumstances, the evidence would come during the trial and the petitioner can certainly be made an accused by the court by exercising power under Section 319 of the Code of Criminal Procedure.

He submits that merely because there is a statement against the petitioner in the statement made by the accused prisoner of the previous FIR who had fled away from the jail, the same does not call for lodging of a fresh F.I.R. Admittedly, in the earlier case, no charge sheet has been submitted against the present petitioner.

He submits that the present proceeding relates to the same incident, therefore, the present case is a misuse of a process of law and ex-facie suffers from malice. He further submits that if every new fact that comes in the statement made under Section 161 of the Code of Criminal Procedure, then for every new fact a separate F.I.R. cannot be permitted to be lodged. He submits that certainly a person can be made co-accused on the statements made on the basis of the accused persons in a case, but , in the instant case, instead of taking steps in the earlier F.I.R. itself, the State lodged the present case in connection with the same occurrence by filing the present F.I.R.

The counsel submits that the entire criminal proceedings in the instant case is hit by the law laid down by the Hon'ble Supreme Court reported in (2001) 6 SCC 181 (Antony Vs. State of Kerala) which has been followed in subsequent judgements reported in (2002) 1 SCC 714 (Kari Choudhary Vs. Most. Sita Devi and Ors.); (2013) 6 SCC 384 (Anju Chaudhary Vs. State of U.P. & Anr.) (2010) 12 SCC 254 (Babubhai & Ors. Vs. State of Gujarat & Ors.).

Counsel appearing on behalf of the State on the other hand has submitted that in the present case, it has been alleged that the petitioner had taken bribe of Rs.7,00,000/- to manage the entire show so that six prisoners of the jail could run away. During the course of investigation of the earlier FIR , upon the statement of the persons who had run away from the jail, evidence has come against the petitioner and thereafter, the petitioner has been absconding and the present FIR has been filed.

He further submits that it is apparent from reading of the present F.I.R. and the earlier F.I.R. that the earlier case related to fleeing away of the prisoners from jail and the role of two other Officers posted in the jail, and the present petitioner was the informant of the earlier F.I.R. The present case has been lodged against the petitioner alleging that it was the petitioner, who was instrumental in fleeing away of six prisoners from the jail by taking bribe to the tune of Rs. 7,00,000/-.

He also submits that the petitioner is not an accused in the earlier case. He submits that the petitioner, being the informant of the earlier case, if made accused in the earlier case, then under that circumstances, the petitioner could not have been forced to give evidence against himself.

The learned counsel for the State submits that in the aforesaid facts and circumstances, a decision was taken to file the present F.I.R. on account of the acts and omissions of the petitioner which led to fleeing away of the prisoners from the jail.

The counsel for the State has relied upon a judgment reported in (2004) 13 SCC 292 (Upkar Singh Vs. Ved Prakash and Ors.) para - 16, 17, 18, 21 to 24 to submit that the present F.I.R. is not fit to be quashed under the facts and circumstances of this case. He also submits that if the present criminal proceedings against the petitioner is quashed, the same would defeat the ends of justice considering the seriousness of the allegations made against the petitioner.

The learned counsel for the State further submits that the question of double jeopardy would arise only when the same accused person is subjected to investigation under two different F.I.Rs. arising out of the same incident. He submits that admittedly the petitioner is not an accused in the earlier FIR. The two F.I.R.s give different and distinct version of the cause which led to fleeing of the prisoners.

The counsel for the State submits that it has been held by the Hon'ble Supreme Court that when there are allegation and counter allegation, two different F.I.Rs. can be lodged.

He further submits that so far as Section 319 of Code of Criminal Procedure is concerned, the said Section deals with power of court, which is post investigation by police, post cognizance and post framing of charge. He submits that filing of F.I.R. is different from the power of the court under Section 319 of Code of Criminal Procedure. Counsel has also referred to Section 218 of the Code of Criminal Procedure to submit that as per the provisions of this Section, there is a clear provision that for every distinct offence ,of which any person is accused, there shall be a separate charge and every such charge shall be tried separately . This is with a rider that nothing in subsection 1 of section 218 shall effect the operation of the provisions of Sections 219, 220, 221 and 223 of Code of Criminal Procedure.

The counsel submits that the judgments, which have been relied upon by the petitioner do not help the petitioner in any manner, rather these judgments including the judgement reported in (2001) 6 SCC 181 (Antony Vs. State of Kerala) are in favour of the respondents. Counsel has referred to para - 27 of judgment reported in (2001) 6 SCC 181 (Antony Vs. State of Kerala) to submit that this is the lead case on the point and in this case also, at para 27, the Hon'ble Supreme Court has carved an exception with regard to counter case arising out of the same incident.

After hearing the counsel for the parties this Court finds that the Hon'ble Supreme Court in the judgment passed in the case of Antony Vs. State of Kerala (supra), in para - 27, that a case of fresh investigation based on second or successive F.I.Rs., not being a counter case filed in connection with the same or connected cognizable offences alleged to have been committed in course of the same transaction may be a fit case for exercise of power under Section 482 of Code of Criminal Procedure. This the Hon'ble Supreme Court has clearly carved an exception with regard to a counter case.

It has been held by the Hon'ble Supreme Court in the judgement reported in (2001) 6 SCC 181 (Antony Vs. State of Kerala) at para 27 as follows:-

"27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, 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 under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Articles 226/227 of the Constitution."

In the judgment passed by the Hon'ble Supreme Court in the judgement reported in (2010) 12 SCC 254 (Babubhai & Ors. Vs. State of Gujarat & Ors.), in para - 16 it has been held as follows:

"16. In Upkar Singh v. Ved Prakash, this Court considered the judgment in T.T. Antony and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counterclaim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under CrPC because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under Section 162 CrPC. However, this rule will not apply to a counterclaim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the investigating agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counterclaim in respect of the same incident having a different version of events, is permissible."

In the judgment reported in (2004) 13 SCC 292 (Upkar Singh Vs. Ved Prakash and Ors.) it has been held in para -16, 17, 21 and 22 as follows:

Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala1 has precluded an aggrieved person from filing a counter-case as in the present case. This is clear from the observations made by this Court in the abovesaid case of T.T. Antony v. State of Kerala1 in para 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) CrPC, this is what the Court observed: (SCC p. 200)

"In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, 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 under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."

(emphasis supplied)

It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.

From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.

A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) also shows that even in cases where a prior complaint is already registered, a counter-complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court did not express any opinion either way.

Thus the arguments of the petitioner , which is mainly based on the judgement passed in the case of T.T. Anthony Vs. State of Kerala, does not help the petitioner in any manner as it does not apply to different version of the same incident, by different person particularly when the complainant of the first case is an accused in the 2nd case. This Court finds that in the previous F.I.R., the version which was projected by the petitioner, who was the informant of the previous case was different from what has been projected in the instant case against the petitioner. This court also finds that the allegations made in the present FIR gives a much wider picture of the incident and it alleges totally distinct offence so far as the petitioner is concerned.

Thus, this Court finds that there are rival and distinct versions in respect of the same occurrence of fleeing away of the prisoners , which can certainly be investigated through present F.I.R particularly in view of the fact that as per the present F.I.R., it is the petitioner, who is main culprit who is informant, and not an accused in the previous F.I.R. In such circumstances, this Court is of the considered view that the present F.I.R., gives different version of the incident as compared to the first F.I.R., and reflects serious allegations against the petitioner . Therefore, this Court is of the considered view that the present F.I.R. is not barred and the arguments advanced by the counsel for the petitioner is fit to be rejected.

Accordingly, this Court does not find any merit in the instant case, which is accordingly dismissed.

The interim order stands vacated.

Pending interlocutory applications, if any, stand dismissed as not pressed.

Office is directed to communicate this order to the concerned court through FAX.