Rohit Dhawan vs State

Nirmal Singh, J.—This is a petition u/s 561-A Cr. P. C ( for short code hereafter) for quashing FIR No. 11/2004 dated 6.4.2004 and

investigation made there upon, registered by Police Station, Crime Branch, Jammu, under Sections 5(2) Prevention of Corruption Act, 2006, read

with Section 420, 120B RPC, with further direction to the respondent to consolidate the trial in one court before learned Chief Judicial Magistrate,

Srinagar where the charge sheet has already been presented in FIR No. 36/2003, which pertains to the same subject matter.

Objections have been filed by the State.

Relevant facts for disposal of this petition are that question papers for MBBS/MD/MS tests, which was held in May, 2003, were printed from

M/S Art Vishal Printers, New Delhi from where one Romesh Hashija employee of M/S Vishal Printers, arranged a question paper and made the

same available to aspiring candidates with the help of his brother Rohit Dhawan, for consideration. Rohit Dhawan contacted one Sanjay Sharma,

who was working at Ludhiana. Said Sanjay Sharma has received an amount of Rs. 10 Lacs from the aspiring candidates, out of which he paid Rs.

5.5 Lacs to Rohit Dhawan. FIR No. 36/2003 was registered on 6.12.2003 by Vigilance Organization Kashmir, and during investigation it was

found that question papers of Post Graduate Medical Entrance Examination which was conducted by BOPEE on 7.12.2003 were also being

provided for consideration of lacs of rupees to the aspiring candidates at Gogji Bagh, Srinagar. Police laid a trap and one Shahnaz Mir was

arrested from whom a bank draft of Rs. 2.50 Lacs was also recovered. During investigation said Shahnaz Mir exposed the scam to Vigilance

Organization. In FIR No. 36/2003 challan was presented before the learned Chief Judicial Magistrate, Srinagar. The petitioner is seeking quashing

of FIR No. 11/2004 on the following grounds:

(a) That registration of second FIR on the same subject matter regarding leakage of question papers is abuse of process of law by the investigating

agencies.

(b) That registration of the second FIR u/s 154 CRPC on the basis of special report of vigilance organization & letter of IGP Crime and Railway is

not valid as such crime No. 11/04 & the investigation made pursuant thereto is of no legal consequence & thus are liable to be quashed.

(c) That there cannot be second FIR & no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence

or same occurrence giving rise tom one or more cognizable offences.

(d) That sweeping power of the investigation doesn't 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.

(e) That the Hon'ble Supreme Court made it settled law that consequent upon filing of successive FIRs whether or after filing of the final report u/s

173(2) CrPC, it would clearly be beyond the purview of Section 154 & 156 CrPC & would be a case of abuse of the statutory power of

investigating authorities.

(f) That fresh investigation based on the second or successive FIRs not being a counter case filed in connection with same or committed in the

course of the same transaction. It is pertinent to mention here in that in respect of same subject matter a charge sheet in first FIR bearing No.

36/2003 has already being filed u/s 173(2) in the Court of learned Chief Judicial Magistrate, Srinagar. The charge u/s 5(1)(d) read with 5(2) P.C.

Act, 2006 was declared as it was held that the offence has been done by the public servants in their private capacity. A copy of the said

chargesheet is enclosed herewith for the ready reference of the Hon'ble Court & is marked as Annexure 'C'.

(g) That to maintain just balance the fundamental rights of accused Under Article 19 & 21 of the Constitution of India, the expansive power of the

police to investigate the second FIR regarding the same occurrence must be struck down by the Hon'ble Court. u/s 8 of Section 173 CrPC the

investigating agencies are within their powers to further investigate, obtain further evidence & forward further reports to the Magistrate. Only first

information regarding the same offence which first entered in station house diary can be regarded as FIR u/s 154 & all such subsequent

informations found to have been committed in the course of the same transaction or the same occurrence will be covered u/s 162 & even if filing of

charge sheet police can investigate the matter in regard to same occurrence & submit report u/s 173(8) but cannot register second FIR.

(h) That allegation in the FIR & connecting evidence if taken on their face value doesn't constitute an offence. The FIR & the material on record

are so absurd & inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground fo4r

proceeding against the accused.

(i) That the second FIR is manifestly attended with malafidy & is malicious instituted with an ulterior motive for harassment to the petitioners by

investigating the one FIR at Srinagar & another at Jammu regarding the same subject matter.

Mr. F.A. Bhat, learned Counsel for the petitioner submitted that there are allegations against the petitioners are that they have provided MBBS

and MD/MS question papers to the aspiring candidates for consideration. For that FIR 36/2003 was registered and after investigation report u/s

173(2) Cr.P.C was presented before Chief Judicial Magistrate, Srinagar. Subsequently, on the same allegations another FIR No. 11/2004 has

been registered. He submitted that registration of second FIR is beyond the purview of Sections 154 and 156 Cr.P.C and it is abuse of statutory

powers of the investigating authority. He contended that when the investigation has been conducted with regard to the same cause, second FIR

cannot be registered.

I have given my thoughtful consideration to the submissions of learned Counsel for the petitioners.

The proposition put forward by the learned Counsel for the petitioners has been considered in Ram Lal Narang Vs. State (Delhi

Administration), , wherein it has been held as under:

Even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a large conspiracy then the one

referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.

The Apex Court in Kari Choudhary Vs. Most. Sita Devi and Others, has further held as under:

Learned Counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report of the police had

no authority to register a second FIR and number it as FIR No. 208, Of course the legal position is that there cannot be two FIRs against the same

accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two

different FIRs and investigation can be carried on under both the them by the same investigating agency.

In Vipin Choudhary and Ors. v. State of U.P. 2005 Cri.L.J. 44 also in has been laid down that there is no illegality in case subsequent FIR is

registered with bona fide and without any ulterior motive.

When a report is forwarded to a Magistrate empowered to take cognizance on a police report, then under Sub-section (8) of Section 173 the

Magistrate has the power to order further investigation. Sub-section (8) of Section 173 Cr.P.C reads as under:

(8). Nothing in this section shall be deemed to preclude further investigation on respect of an offence after a report under Sub-section (2) has been

forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or

documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of

Sub-sections (2) to (6) shall as far may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-

section (2).

From the perusal of the above section it is crystal clear that the Magistrate can order further investigation in respect of the same FIR for which

report under Sub-section (2) of Section 173 has been forwarded but the Magistrate has no power to direct the police to investigate any other case

under the above said clause.

The allegations in FIR No. 36/2003 are with regard to providing MBBS question papers to the aspiring candidates for consideration whereas

the allegations in FIR No. 11/2004 are with regard to leakage of question papers for MD/MS course and providing the same to the aspiring

candidates for consideration. There are two separate acts of the petitioners and the place of occurrence is also separate as well as the witnesses,

therefore, two separate FIR's have rightly been registered and the investigating is being carried out.

In view of the above, there is no merit in this petition, which is accordingly dismissed.