Monday, 18 July 2016

Whether it is permissible to file separate chargesheets for distinct offence on basis of same FIR?

FIR is foundation of investigation. Without registration of FIR, investigation cannot proceed. But when an FIR is registered and investigation discloses the commission of several separate, independent and distinct offences arising out of separate transactions and not connected with each other though similar in nature, for which separate trial is needed in accordance with provisions of Cr.P.C., submission of separate charge-sheets for separate, independent and distinct offences on the basis of same FIR cannot be said to be against law. In such situation even if one charge-sheet is submitted by investigating agency, the Magistrate or trial court may order separate trial for separate, independent and distinct offences arising out of separate transactions and not connected with each other, in accordance with provisions of Cr.P.C. 
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 



CRIMINAL MISC. CASE NO.4142 OF 2012 
(Under Section 482 of Code of Criminal Procedure) 

Faujdar Singh 
Vs. 
The State of Uttar Pradesh through 
Superintendent of Police, CBI 

Order date:13.10.2015 

Hon'ble Akhtar Husain Khan, J 


1. Present petition has been moved by petitioner-Faujdar Singh, under Section 482 read with Section 483 of Code of Criminal Procedure (in short 'Cr.P.C.') with prayer to quash the order dated 25.09.2012 passed by learned Special Judge, CBI, Court No.2, Lucknow along with entire proceedings of Cases No.23/96, 24/96, 25/96, 26/96, 27/96, 28/96, 29/96, 30/96, 31/96, 32/96, 33/96, 34/96, 35/96, 36/96, 37/96, 38/96, 39//96, 40/96, 41/96, 42/96, 43/96, 44/96, 45/96, 46/96, 47/96, 48/96, 49/96, 50/96, 51/96, 52/96, 53/96, 54/96 and 55/96 arising out of same Crime No.RC-63(A)/88, Police Station CBI/ACB, Lucknow to prevent the abuse of process of court and to give effect to the provisions of Section 300 of Cr.P.C. 
2. I have heard Sri P. Chakravarty, learned counsel for petitioner and Sri Bireshwar Nath, learned counsel for opposite party-Central Bureau of Investigation (in short 'CBI'). I have perused the records. 
3. Learned counsel for the petitioner has submitted that on 29.12.1988, a first information report at Crime No.63-A/1988 was registered in Police Station CBI/ACB, Lucknow against petitioner and the case was investigated by CBI. After having completed investigation, CBI submitted 36 charge-sheets against petitioner with regard to the same FIR, whereupon, special court took cognizance and 36 criminal cases were registered against petitioner. Thereafter, at the time of framing of charges, it was submitted before the trial court on behalf of petitioner that all the cases should be clubbed together and petitioner should be charged and tried together, whereupon, learned Special Judge passed order under Section 219 of Cr.P.C. and ordered that out of 36 cases registered against petitioner, each bunch of three cases shall be tried together and in each bunch of three cases, evidence shall be recorded in leading case mentioned by the court. Thus, 36 cases registered against petitioner were converted into 12 leading cases, whereas, copies under Section 207 of Cr.P.C. were provided to petitioner only in one case i.e. Case No.38 of 1996 out of 36 cases. 
4. Learned counsel for the petitioner has contended that all of the 36 cases are similar and based on same evidence, therefore, all the cases should have been tried together in view of provisions of Section 219 of Cr.P.C. 
5. Learned counsel for the petitioner has contended that out of above 36 cases, Cases No.20/96, 21/96 and 22/96 have been decided by common judgment and order dated 16.08.2012 passed by learned Special Judge, CBI, Lucknow and petitioner has been convicted and sentenced to maximum sentence of seven years imprisonment. Since, all the cases are related to same crime as well as charges levelled against petitioner and evidence in all cases are same, the trial of petitioner in remaining 33 cases is barred by provisions of Section 300 of Cr.P.C. as the petitioner cannot be convicted 36 times for the same offence. 
6. Learned counsel for petitioner has placed reliance on following judicial pronouncements: 
"(1) Mohan Baitha and others Vs. State of Bihar and another; 2001 SCC (Cri) 710 
(2) Balbir Vs. State of Haryana and another; 2000 Cri.L.J. 169 (SC) 
(3) Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao and another; 2011 Cri.L.J. 1094 (SC) 
(4) Naresh Kakkar Vs. The State; 1995 Cri.L.J. 3062 (Delhi High Court) 
(5) Janapati Krishna Vs. State of A.P.; 2005 Cri.L.J. 1187 (Andhra Pradesh High Court) 
(6) Rafiq Khan and another Vs. Smt. Jamila Bee and another; 1999 Cri.L.J. 852 (Madhya Pradesh High Court) 
(7) Central Bureau of Investigation Vs. Dilip Kumar Lahiri and others; 2013 Cri.L.J. 2807 (Culcutta High Court)." 

7. Learned counsel for CBI has opposed the petition and has contended that bar of Section 300 of Cr.P.C. is not applicable on trial of remaining 33 cases. The order dated 25.09.2012 passed by learned Special Judge, CBI, Lucknow is in accordance with law. 
8. I have considered the submissions made by learned counsel for the parties. 
9. Indisputably, FIR at Crime No.RC-63(A)/88 in Police Station CBI/ACB, Lucknow was registered against petitioner for offences under Sections 120-B, 420, 468, 471 IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act (Act-II) of 1947 (in short 'PC Act') and investigation was conducted by CBCID. It is also an admitted fact that after investigation, CBI submitted 36 charge-sheets against petitioner for offences under Sections 420, 467, 468, 471, 409, 477-A IPC and Section 5(2) read with Section 5(1)(d) of PC Act, whereupon, learned Special Judge, CBI, Lucknow took cognizance and registered 36 criminal cases against petitioner separately. Thereafter, at the time of framing of charges, request was made on behalf of petitioner that all the cases should be clubbed together and petitioner should be charged and tried together for all the charges levelled against him but learned trial Judge placed reliance on Section 219 of Cr.P.C. and ordered that out of 36 cases registered against petitioner each bunch of three cases shall be tried together and in each bunch of three cases evidence shall be recorded in leading case. In this way, trial has begun in all 36 cases registered against petitioner. Charges have been framed separately in all 36 cases against petitioner. Bunch of Case Nos.20/96, 21/96 and 22/96 has been decided by common judgment and order dated 16.08.2012 passed by learned Special Judge, CBI, Lucknow and petitioner has been convicted and sentenced in said three cases separately. 
10. Sub-section (2) of Section 212 of Cr.P.C. provides that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particulars of items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219. 
11. Sub-section (2) of Section 212 of Cr.P.C. speaks about offence of criminal breach of trust or dishonest misappropriation of money or other movable property. It does not speak about offences of forgery or cheating punishable under Sections 420, 467, 468, 471, 409, 477-A IPC or offences punishable under PC Act. 
12. Sub-section (1) of Section 220 of Cr.P.C. provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. 
13. In view of sub-section (1) of Section 220 of Cr.P.C., the point for consideration is as to whether 36 charge-sheets filed separately are related to offences arising out of same transaction. 
14. Section 220(1) of present Cr.P.C. is corresponding section to Section 235(1) of old Cr.P.C. 
15. In the case of Balbir Vs. State of Haryana and another (Supra), Hon'ble Apex Court has considered Section 235(1) of old Cr.P.C. and has placed reliance upon its earlier judgment rendered in the case of State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao reported in AIR 1963 SC 1850, wherein, Hon'ble Apex Court has laid following proposition for determination of same transaction or different transaction: 
"The series of acts which constitute a transaction must of necessity be connected with the another and if some of them stand out independently, they would not form part the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression "same transaction" alone had been used in S.235 (1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression `same transaction' occurring in cls. (a), (c) and (d) of S.239 as well as that occurring in S.235(l) ought to be given the same meaning according to the normal rule of construction of statutes." 

16. In the case of Mohan Baitha and others vs. State of Bihar and another (Supra), Hon'ble Apex Court has considered the word "same transaction" and has held that the expression "same transaction" from its very nature is incapable of its exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and ordinary use of language must decide whether on the facts of a particular case, it cannot held to be in one transaction. 

17. In the case of Naresh Kakkar Vs. The State (Supra), Hon'ble Single Judge of Delhi High Court has placed reliance of on judgment of Division Bench of Delhi High Court rendered in the case of Jai Narain Vs. State reported in 1969 (5) DLT 648, wherein, same transaction has been defined as follows: 
"The words same transaction connote that the acts are so related to one another in point of purpose, or as cause and effect, or as principal and ancillary so that they constitute one transaction or a continuous action. Continuity of action contemplated is not in the sense that one act follows the other without any connection but in the sense of intimate connection between the different acts. There must be a community of purpose and a concert. The accused persons even committing offences of the same kind but separately may not be regarded as having committed those in the course of the same transaction." 
18. 36 charge-sheets submitted by CBI shows that each charge-sheet are based on separate and independent transaction and each transaction is sufficient to constitute separate and independent offences. Judicial pronouncements referred above do not provide any help to petitioner rather these pronouncements are supporting view of prosecution. 
19. As transactions relating to each charge-sheet are separate and independent, Section 220 (1) of Cr.P.C. is not applicable on the facts of this case. 
20. Sub-section (2) of Section 220 of Cr.P.C. deals with offences of criminal breach of trust or dishonest misappropriation of property whereas charge-sheets have been submitted against petitioner for offences under Sections 420, 467, 468, 471, 409, 477-A IPC and Section 5(2) read with Section 5(1)(d) of PC Act, therefore, sub-section (2) of Section 220 of Cr.P.C. is also not applicable on the facts of this case. 
21. Section 300 (1) of Cr.P.C. provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. 
22. Sub-sections (1) and (2) of Section 221 of Cr.P.C. are reproduced below for ready reference: 
"221. Where it is doubtful what offence has been committed. - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. 
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it." 

23. As mentioned above, each charge-sheet relates to a separate and independent transaction and each transaction is sufficient to constitute offences under Sections 420, 467, 468, 471, 409, 477-A IPC and Section 5(2) read with Section 5(1)(d) of PC Act, therefore, Section 221 of Cr.P.C. is not applicable on the facts of this case. 
24. It is evident from 36 charge-sheets submitted by CBI that separate and independent offences of similar nature are alleged to have been committed by petitioner in separate and independent transactions, therefore, it cannot be said that all 36 charge-sheets are related to same offences or based on same facts. 
25. In the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao and another (Supra) referred by learned counsel for petitioner, Hon'ble Apex Court has considered the provisions of Section 300(1) of Cr.P.C. and has held in paragraph 7 as under: 
"7. Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts." 
26. In the case of Janapati Krishna Vs. State of A.P (Supra) as well as in the case of Rafiq Khan and another Vs. Smt. Jamila Bee and another (Supra), Hon'ble Single Judges of Andhra Pradesh High Court as well as Madhya Pradesh High Court have considered the provisions of Section 300 of Cr.P.C. and have held that on the facts of the case, bar of Section 300 of Cr.P.C. is applicable. 
27. Last judgment referred by learned counsel for petitioner is judgment of Hon'ble Single Judge of Calcutta High Court in the case of Central Bureau of Investigation Vs. Dilip Kumar Lahiri and others (Supra). This judgment has been rendered by Calcultta High Court in revision filed by Central Bureau of Investigation against order dated 31.01.2003 passed by learned trial judge, whereby, learned trial judge had refused to take cognizance on the basis of Police Report Nos.15 and 16 of 2004 dated 17.06.2004 and had directed the Superintendent of Police, CBI/ ACB, Culcutta to conduct further investigation and submit final form afresh. 
28. In this case, two separate charge-sheets were submitted by CBI on the basis of solitary FIR. In this context, Hon'ble Single Judge of Culcutta High Court has held in paragraph 10 as under: 
"10. It is an admitted fact that charge-sheet Nos.15 and 16 of 2004 were submitted on the basis of a solitary FIR, RC Case No.04 of 2003 was recorded on the basis of the said FIR. The case was investigated into and the resultant effect of the investigation was submissions of two separate charge-sheets. If the Court is to accept two separate charge-sheets on the result of investigation of a particular case then the witness of both the cases would be same and similar. Documents connected in both the cases were collected on the basis of the same investigation. ....." 
29. On the facts of present case, judicial pronouncements referred above are not helpful to petitioner. 
30. In view of above, it is apparent that judgment and order of learned Special Judge, CBI, Lucknow in above three cases can not provide bar under Section 300 of Cr.P.C. for trial of remaining 33 cases. 
31. In view of provisions of Section 219 of Cr.P.C., the procedure adopted by trial court in all 36 cases cannot be said to be against law and abuse of process of law. 
32. FIR is foundation of investigation. Without registration of FIR, investigation cannot proceed. But when an FIR is registered and investigation discloses the commission of several separate, independent and distinct offences arising out of separate transactions and not connected with each other though similar in nature, for which separate trial is needed in accordance with provisions of Cr.P.C., submission of separate charge-sheets for separate, independent and distinct offences on the basis of same FIR cannot be said to be against law. In such situation even if one charge-sheet is submitted by investigating agency, the Magistrate or trial court may order separate trial for separate, independent and distinct offences arising out of separate transactions and not connected with each other, in accordance with provisions of Cr.P.C. 
33. In the case of Motisham Mohammed Ismail Vs. CBI, SCD Bank Securities and Frauds Cell reported in 2003 Cri LJ 4763, Hon'ble Single Judge of Kerala High Court has held that in all cases FIR is not required for the purpose of filing charge-sheet. 
34. In view of above, I am of the view that the impugned order dated 25.09.2012 passed by trial court cannot be said to be against law. I found no sufficient ground to exercise jurisdiction under Section 482 of Cr.P.C. Petition moved by petitioner has no merit and is dismissed accordingly. Interim order passed earlier stands vacated. 
Order date:13.10.2015 
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