Smt. Vishalakshi Bhat vs State of Karnataka

Anand Byrareddy, J.—These petitions are heard and disposed of together at the stage of admission having regard to the settled legal position.

The facts as stated in Cri. P. No. 8703 of 2016 is that the petitioner was said to be the Branch Manager at HDFC Life Insurance, BTM Branch, Bangalore and in the month of July 2015 in view of a scheme having been launched by the bank whereby if deposits were made for a period of 2 to 3 months as investments, there was an assured interest of 10% and it was also the allegation that the petitioner had indicated that if instead of an individual making a deposit, if an employee of the bank, such as her, should make such deposit, the rate of interest was higher and accordingly she had persuaded respondent no.2 who was said to be a relative of the petitioner to make a deposit in her name in the said scheme so that he may earn higher interest. Accordingly an amount of Rs. 36 lakhs including Rs. 10 lakhs which belonged to his wife was deposited on the assurance that the same would be refunded by October 2015, along with interest. It then transpires that the petitioner did not keep the promise and the money was not refunded. The petitioner also was not traceable and remained incommunicado, since her cell phone was also switched of. It is thereafter on enquiry by the respondent no.2 as to the whereabouts of the petitioner it was found that the petitioner had involved a large number of persons including her friends and relatives in similar transactions, the variance being that in certain cases the deposits were made in the name of the very individuals and in most cases it was made in the name of the petitioner. The total amount of such deposits exceeded a sum of Rs. 3.40 Crore which is the subject-matter of this and the connected petitions.

At the instance of the second respondent herein a case had been registered and after investigation a charge-sheet was filed and a case is now pending in C.C. No. 515 of 2016. Even prior to this case it transpires that there was yet another case registered in Crime No. 752 of 2015 on similar allegations. Investigation in that case having been concluded, a charge-sheet was filed and the same is said to be pending in C.C. No. 7358 of 2016. It is in this fashion that several cases are serially filed against the petitioner in respect of such deposits as also one other mode by which investments were sought to be made where share certificates would be issued instead of merely receiving the deposits and the share certificates after a period would carry a premium which would be to the benefit of the share certificate holders. These share certificates similarly either stood in the name of the petitioner or in the name of the individuals who had made such investments. In view of a large number of cases that are now registered notwithstanding that it is against the same petitioner and in respect of identical transactions involving the same bank and the modus operandi alleged also being identical, the petitioner is before this Court.

The learned Counsel Sri Amar Correa appearing for the petitioner in all these cases would contend that the law is well-settled that in such serial cases where it relates to the same transaction and the manner in which tire cases ought to be entertained and prosecuted is well-settled. In this regard he would place reliance on the judgments of the Supreme Court in the case of T.T. Antony v. State of Kerala and Others(2001)6 SCC 181; Amitbhai Anilchandra Shah v. Central Bureau of Investigation and Another (2013)6 SCC 348; also in the case of Ningappa Parasappa Pujari and Others v. State of Karnataka 2012(3) KCCR 1734, which have been referred to and relied upon by this Court in Cri. P. No. 201108 of 2014 in the case of Mallu v. State of Karnataka and connected cases decided before the Kalaburgi Bench on 5-3-2015 which has in turn formed the basis for a circular issued by the State Government dated 30-7-2015 bearing No. L and O/MISC/24/20l5-16. The subject-matter of which are guidelines to be followed by the Investigating Officer strictly while investigating cases booked in common course of transaction and the inspiration for the circular is the criminal petition referred to herein above namely, Cri. P. No. 201108 of 2014. The principles of law as settled in respect of such cases and the manner in which they are to be tried is spelt out by the Supreme Court in T. T. Antony''s case in these words.

"19. The scheme of Criminal Procedure Code, 1973 is that an offence in charge of a police station has to be 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 cognisable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 of Cr. P.C., as the case may be, and forward his report to the Magistrate concerned 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 he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 of Cr. P.C.

From the above discussion it follows that under the scheme of the provisions of Sections 154,155, 156, 157, 162, 169, 170 and 173 of Cr. P.C. only the earliest or the first information in regard to the commission of a cognisable offence satisfies the requirements of Section 154 of Cr. P.C. Thus there can he no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognisable offences or the receipt of information about a cognisable offence or an incident giving rise to a cognisable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a police station has to investigate not merely the cognisable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more report as provided in Section 173 of Cr. P.C."

The above passages make it clear that the Investigating Officer as soon as he receives the first information report with regard to the commission of cognisable offences, he has to start the investigation into the matter. Any subsequent information he receives with regard to any incident out of any similar incident or with regard to any incident out of the same transaction, he shall not register further crime numbers but he shall treat that information as the statement of the witnesses either under Section 162 or Section 161 of the Code of Criminal Procedure. He is empowered to seize any property, record the statement of any of the witnesses or arrest any accused persons whose names are surfaced subsequently by examining the witnesses who are connected with such case and ultimately, he has to collate the entire investigation papers and come to the conclusion to ascertain whether whole of the incident, the statement of witnesses and collecting of the materials pertaining to the same transaction has taken place though at different times and involving different persons. It is the totality of circumstance which would be material which the Investigating Officer would have to address and take a decision to file a comprehensive common or single charge-sheet comprising of all the investigating materials to the Court.

The present cases are clearly of that nature in which a common charge-sheet ought to have been filed. Similarly, in Amitbhai Anilchandra Shah''s case the Supreme Court has reiterated the procedure that should be followed and has cautioned the Courts as regards the examination of the facts and circumstances giving rise to multiple first information reports and the test of sameness to find out whether the multiple cases relate to the same incident in respect of the same transactions. In T.T. Antony''s case it is also laid down as follows:

"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 cognisable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) of Cr. P.C. It would clearly be beyond the purview of Sections 154 and 156 of Cr. P.C. may, 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 cognisable 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 of Cr. P.C. or under Article 226/227 of the Constitution of India."

And the Court has indicated the correct course of action as being that the note ought to have been taken on the findings and contents for the Courts to streamline the investigation to ascertain true and correct facts, collect the evidence in support thereof form an opinion under Sections 169 and 170 of the Code of Criminal Procedure as the case may be and forward the report under Section 173(2) or Section 173(8) of the Code of Criminal Procedure to the Magistrate concerned.

In the light of the fact that these cases have been filed over a period of time and are pending at various stages and that in some cases charge-sheets have been filed, the proper course to be adopted as laid down in Amith Shah''s case would be that it is the first charge-sheet which could prevail and the subsequent charge-sheets in respect of the similar transactions involving the same petitioner ought to be treated as supplementary charge-sheets and the FIRs to be treated as additional statements.

It is stated by the learned Counsel for the petitioner that the earliest of the case launched against the petitioner which is now registered in C.C. No. 7358 of 2016 and that all the other cases which are the subject-matter of these petitions are subsequent matters. Therefore, it would be prudent to allow the petitions and quash the charge-sheets filed and the respective FIRs in each of these cases shall be treated as additional information and the statements under Section 161 of the Code of Criminal Procedure and the charge-sheets that would have necessarily filed in the independent cases shall be submitted as supplementary charge-sheets and all these cases shall be tried together in C.C. No. 7358 of 2016.

It is necessary that 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 cognisable offence alleged to have been committed in the course of same transaction and in respect of which pursuant to the first FIR either investigation is under way or vital report under Section 173(2) of Cr. P.C. is forwarded to the Magistrate, it is necessary for this Court to quash the same in exercise of power under Section 482 as laid down by the Supreme Court. Accordingly, the respective FIRs and the charge-sheets in the above cases stand quashed.

It would also be necessary for the respective Investigating Officer involved in each of the cases to approach the Court below which shall return the charge-sheets to the concerned Investigating Officer who in turn shall hand over the same to the Investigating Officer in the case that was instituted against the petitioner namely, C.C. No. 7358 of 2016 on the file of the Additional Chief Metropolitan Magistrate who shall in turn proceed in terms of the directions issued herein above and the charge-sheets laid before the Court. The original records pertaining to each of the cases shall also stand transferred to the aforesaid Court which shall try the case as one.