Susanta Ghosh vs The State of West Bengal

Sudip Ahluwalia, J.—In this Revisional application the petitioner, who is a charge-sheeted accused person in the Sessions Trial Case No. XIX of January, 2012 arising out of Anandapur Case No. 36 of 2011 dated 6th June, 2011, U/Sections 147 /148 /149 /448 /326 /307 /302 /506 /201 /120B of the IPC read with Sections 25 and 27 of the Arms Act, has prayed for quashing those proceedings.

The background of the matter is that previously three cases of the Keshpur Police Station being Case Nos. 59 dated 22.09.2002, 60 dated 22.09.2002, and 61 dated 26.09.2002 were drawn up in that P.S. on the basis of the complaints lodged by three complainants namely Nemai Ch. Sarkar, Debasish Roy (Officer-in-Charge) and Smt. Chandana Acharya respectively.

Charge-sheets in the aforesaid three cases were submitted by Police on 30th October 2004, 11th November 2004, and 9th February 2005 respectively. The accused persons tried in S.T No. 25/1-06 arising out of Keshpur P.S Case No. 59 of 2002 were acquitted by the Judgment of the concerned Trial Court on 29th May 2008. Similarly the accused facing trial in the relevant Sessions case arising out of Keshpur PS Case No. 61 of 2002 were acquitted from the various charges involved in the same by a judgment passed on 21st May, 2010. The final fate of Keshpur P.S Case No. 60 of 2002 has not been mentioned in the revisional application. Nevertheless the contention of the petitioner is that he was neither named in either of the aforesaid FIRs, nor was he shown as an accused in any of the charge sheets. Smt. Chandana Acharya, the de-facto complainant in Keshpur P.S. Case No. 61 of 2002 who was the daughter of the victim Ajoy Acharya, had not made any allegation against the petitioner either in the complaint, or even in her deposition before the Trial Court.

However, subsequently in May 2011 after a change in the political scenario in West Bengal, Anandapur PS Case No. 36 of 2011 was drawn up on the 6th of June on the basis of a written complaint dated 5th June, 2011 made by Shyamal Acharya, son of Late Ajoy Acharya, belonging to the TMC Party. His allegations were substantially the same as made in the FIR lodged by his own sister Smt. Chandana Acharya in her own complaint being Keshpur Police Station case No. 61 dated 26.09.2002, lodged 9 years earlier, the translated version of which reads as under -

"I humbly submit that on 22.9.2002 at about 10 a.m. my father Ajoy Acharya son of late Satish Acharya, resident of village- Raniorh, P.S. Keshpur along with some TMC workers came to our house and said that according to the resolution of peace meeting everyone was free to practice or pursue politics of their own choice. And sometime thereafter the following miscreants armed with rifle, guns, tangi and other sharp weapons came running to our house. 5/6 persons including my father tried to hide inside the house but the miscreants Sona Das, Manas Mitra, Bangshi Mondal, Bablu Mitra, Jhalu Mondal, Arun dragged out my father from the house and started to beat them. I fell on their feet and begged them to spare my father but they said "we shall make these buggers leave TMC forever" and they shot the TMC workers including my father. My father was begging for a glass of water. When we ran towards him, the following miscreants forced us to go inside our room and dragged the victims towards Piasala. Since then we do not have any whereabouts of my father.

Hence I request you to take legal steps against the following miscreants and rescue my father. For being busy in searching my father there has been delay in filing the complaint. Humbly Chandana Acharya........"

Now, in the subsequent FIR drawn up in the year 2011, 19 other persons, whose names were not mentioned in the earlier three FIRs lodged in the Year 2002, including the present petitioner have been named as the offenders. A translation of the allegations in the subsequent FIR (Anandapur PS Case No. 36 of 2011) is set out below -

"................ My name is Shyamal son of late Ajoy Acharya. I am the resident of village Raniorh Post- Sirsa, P.S. Keshpur at presently (Anandapur) District - Paschim Medinipur. On 22.9.2002 at about 9 a.m. my father along with some TMC supporters came to our native house from Medinipur. Due to the torture of CPI (M) my father was forced to leave his home. On 22.9.2002 my father and some T.M.C. supporters came to our home, like Ram Sani, son of Gagan Sani, Arup Ghosh, Dil Mohammad, Raju Singh, Sk. Alauddin, Sk. Taju and many others. At that time the miscreants whose names are mentioned below who belonged to C.P.I. (M) armed with rifle, guns, pistols, bomb, tangi and other sharp weapons entered our house and started beating my father and his companions with sharp weapons. The CPM miscreants chased them up to Piasala village and there in the farm yard of Gobinda Majhi they killed my father and his companions with sharp weapons and guns. The victims were 7 in number. On informing about the entire incident at Keshpur PS the then Officer refused to take the complaint. Furthermore he abused us. After few days the aforesaid incident was informed in writing to the Medinipur SP. Keshpur PS received the written complaint on 26.9.2002 through the SP. Till date there is no information as to the whereabouts of my father. During the Bidhan Sabha Election 2011 the CPM Harmads went to our home and threatened my family and said "if you do Trinamool you will also be killed like your father".

Yesterday i.e. on 04.6.2011 in the afternoon I came to learn from the people that the Police have recovered some human skeletons by digging earth on Daser Bandh, Keshpur. I went there and saw all the skeletons and I could identify the skeleton of my father. Seeing his Dhoti, Genji and undergarment and set of teeth I became sure that the said skeleton was of my father Ajoy Acharya.

Hence, Sir, the aforesaid incident was pre-planned by the following accused persons who are responsible for my father''s death. Hence I request you to investigate into the entire incident by CBI and by conducting DNA test, and justice be done by inflicting exemplary punishment to the accused for such heinous act.

Dated- 05.06.2011

Yours,

Sd/- Shyamal Acharya......"

In the Revisional Application the petitioner has made out a case of political vendetta by the new political dispensation of the State. The petitioner claims to have been a prominent leader of the erstwhile establishment having held ministerial posts in the previous government, and is still the sitting MLA belonging to the rival CPI (M) party from Garhbeta Assemble Constituency. It has also been contended on his behalf that the subsequent FIR lodged nine years after the alleged occurrence is a creature of afterthought and continuation of the criminal proceedings in the given circumstances would result in his unnecessary harassment, and also be an abuse of the process of Court. Some decisions have been cited on his behalf to support this contention.

In T.T. Antony Vs. State of Kerala and Others, , the Supreme Court had observed -

"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 Cr.P.C. 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 Narangs'' case (supra) 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.PC, 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 underway 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 Article 226 /227 of the Constitution.

The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.

For the aforementioned reasons, the registration of the second FIR under Section 154 of Cr.P.C. on the basis of the letter of the Director General of Police as Crime No. 268/97 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crime No. 353/94 and Crime No. 354/94 for making further investigations and filing a further report or reports under Section 173(8) of Cr.P.C. before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268/97 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside."

In Babubhai Vs. State of Gujarat and Others, , it was held -

"21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.

While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in close proximity of time, therefore, they are two parts of the same transaction.......

In view of the above, we are of the considered opinion that the High Court reached the correct conclusion and second FIR C.R. I-155/2008 was liable to be quashed."

In Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation and Another, the relevant observations were -

"22) ......"The above extracts culled out from the chargesheet and supplementary charge sheet filed in the first FIR by the CBI would clearly show that killing of Tulsiram Prajapati was a fake encounter and was part of the same series of acts so connected together that they form part of the same conspiracy as alleged in the first FIR. In view of the same, there cannot be a second FIR dated 29.04.2011 and fresh chargesheet dated 04.09.2012 for killing of Tulsiram Prajapati."

The following observations of the Supreme Court in allowing the bail application of the petitioner in this very case (i.e. Anandapur PS Case No. 36 of 2011) Susanta Ghosh Vs. State of West Bengal, have also been cited on his behalf-

"15. Having considered the submissions made on behalf of the respective parties, we are inclined to allow the Appellant''s prayer for bail. Admittedly, two FIRs in respect of the same incident were lodged on the same day, while the third FIR was lodged a few days later. The first FIR was lodged by one Nemai Ch. Sarkar, a local man. The second FIR was lodged by the S.H.O. of the Keshpur Police Station and the third FIR was lodged by the daughter of the deceased Ajoy Acharya. There is no mention of the Appellant''s name or alleged role in the incident. There was nothing to prevent at least Smt. Chandana Acharya, the daughter of the deceased, from naming him. Whether the investigating authorities took notice of the same is an entirely different matter."

It is however well settled that any observations made in deciding a bail application are inconsequential for the purpose of deciding the case finally, in which merits of the entire matter have to be considered independently. To that extent therefore, the aforesaid observations of the Supreme Court in connection with the petitioner''s bail application would have little bearing on the final outcome of this Revision. However the ratio of the other decisions cited on his behalf undisputedly is that no second FIR concerning an offence or set of offences is tenable, if the allegations covered in the same form a part of the same transaction covered in the first FIR.

The respondent/State from its side has placed before this Court the Judgment of a Division Bench of this Court dated on 16th August, 2013 in Sk. Najmul Arfin @ Sheikh Arfin @ Arfin Sheikh @ Arfin Najmul Vs. The State of West Bengal--> . In that matter a similar application filed by another accused Sk. Najmul Arfin, in the self-same second FIR was decided. The said Sk. Najmul Arfin incidentally was one of the charge sheeted accused persons in the earlier FIR No. 61 of 2002, and was acquitted by the Sessions Court in its Judgment dated 21.05.2010. The Division Bench in rejecting his prayer for quashing the FIR had observed -

"23. From the facts narrated above it is thus evident that the incident of 22.9.2002 happened in the house of Ajoy Acharya where members of a particular political party were alleged to have entered into the house of Ajoy Acharya and who belonged to a rival political party. It is further evident that the incident of 2002 was witnessed by Chandana Acharya who even alleged that her father had been shot. However, what is distinct in this case is that on 4.6.2011 the Police recovered some human skeletons and when Shyamal saw one of them he was able to identify it as being the skeleton of his father. This new incident of the skeletons being dug out cannot be considered in isolation. It has to be considered in conjunction with the earlier case because it was in that case that there was an allegation of the father of Shyamal being assaulted and was shot at. This, therefore, changes the tone, texture and the entire character of the Case.

In the earlier case, the matter had ended with the dragging of Chandana''s father towards Piasala village and nothing beyond that. So far as the instant case is concerned, and which has been lodged by Shyamal Acharya, the allegations are that his father and his companions were beaten up and chased by the CPI(M) miscreants towards Piasala village where, in the farmyard of Gobinda Majhi, they killed his father and his companions with sharp weapons and guns. This, according to us, is the distinguishing feature in so far as the instant F.I.R is concerned and it distinguishes the same from the earlier F.I.R. The provisions of Section 300 of the Cr.P.C, 1973 will apply only in a case where the offence remains the same and is based on the same set of facts. Since the instant F.I.R is clearly distinguishable because of the specific nature of allegations being made with regard to the killing of Ajoy Acharya, the said provision cannot be resorted to by the petitioners to claim the benefit of Section 300 of the Cr.P.C. Moreover the provisions of holding a trial is in public interest and therefore, such a trial cannot be frustrated due to technicalities and the Trial Court should not be restrained from assessing evidence. The discovery of skeletons and the identification made by Shyamal Acharya creates strong preponderance of probabilities.

Moreover, the petitioners have the liberty to ventilate their grievances at the time of hearing on the point of framing of Charges and therefore, the extraordinary powers under Section 482 of the Code of Criminal Procedure, 1973 should not be invoked at this stage. In a judgment of the Hon''ble Supreme Court passed in the case of Amit Kapoor Vs. Ramesh Chander and Another, it has been held that due care and caution is to be exercised while invoking the powers both under Section 397 as well as under Section 482 of the Code of Criminal Procedure, 1973. Their Lordships, in the aforementioned judgment have culled out some principles to be considered while exercising jurisdiction in matters pertaining to quashing, either in the exercise of jurisdiction under Section 397 or Section 482 or together, as the case may be. Their Lordships have stated that the High Court should not unduly interfere and, at the very threshold, the High Court should be loath to throttle the prosecution in exercise of its inherent powers.

From the conspectus of the series of events and/or the facts leading to the initiation of the instant case, we must notice, as we are constrained to do, that in both the F.I.Rs. the factum relating to shooting of the TMC workers including the father of Chandana was very specifically stated. In the 1st F.I.R., the language, at the risk of repetition, is:--

"Arun dragged out my father from the house and started to beat them. I fell on their feet and begged them to spare my father but they said "we shall make these buggers leave TMC forever" and they shot the TMC workers including my father."

Thus the fact relating to shooting of the father of Chandana was included in the 1st F.I.R. but what distinguishes the latter case from the earlier one is the discovery of skeletons leading to identification. Under such circumstances, this Court is inclined to accept the submissions of the learned Counsel for the State to the effect that a 2nd Trial cannot be prevented. Section 300 of the Code of Criminal Procedure clearly lays down that a person once convicted or acquitted shall not be tried for the same offence. However, a distinction has been made that a person acquitted or convicted may afterwards be tried for any distinct offence for which a separate charge might have been made. In the instant case, the scenario of the incident changed with the subsequent discovery of Section 300 , Cr.P.C. cannot be stretched to apply to the latter case. Consequently, the principle that no person shall be prosecuted and punished for the same offence more than once, will not apply in this case.

Moreover, the discovery of bones coupled with the fact that Shyamal was able to identify as being that of his father, would definitely change the nature of the case to a preponderance of a probability that he may have been killed in the incident that occurred on 22.9.2002. Therefore, there is no bar for the initiation of a fresh case, which has rightly been done and in which investigations will be held, Trial conducted and ultimately, the guilty would be punished.

Therefore, the discovery of skeletons would give rise to a fresh cause of action justifying the 2nd F.I.R.

The judgment of the Hon''ble Supreme Court passed in the case of Babubhai Vs. State of Gujarat and Others, becomes necessary to be looked into. Their Lordships have held that in case of a subsequent F.I.R, the Court has to examine the facts and circumstances giving rise to both the F.I.Rs. and the test of sameness is to be applied to find out whether both the F.I.Rs. relate to the same incident in respect of the same occurrence or are in regard to incidents which have two or more parts of the same transaction. Their Lordships had held that if the answer is in the affirmative then the 2nd F.I.R is liable to be quashed. In the instant case we are firmly of the view that so far as the 2nd F.I.R is concerned, it relates to the discovery of skeletons at a different site and therefore it cannot be said to be two or more parts of the same transaction and therefore, in the opinion of this Court, the 2nd F.I.R is liable to be quashed.

Consequently the argument of Mr. Sekhar Basu to the effect that in the earlier case there was only one place of occurrence but in the present case there are other places of occurrence and therefore the 2nd F.I.R is distinct, must be accepted and even it has been lodged after a lapse of nine years because the skeletons themselves were dug out after such a long period of time giving rise to a fresh cause of action.

(Emphasis added).

We are, therefore, of the view that these applications must be Dismissed and as a result the Criminal case instituted against the Petitioners cannot be Quashed. We therefore Dismiss these applications......."

It is thus seen from the observations of the Division Bench in paras 27 and 29 quoted above, the facts alleged in the second FIR in the present case are not a part of the same transaction constituting the offences quoted in the first FIR of 2002. In para 30, the Division Bench has also distinguished the decision in "Babubhai v. State of Gujarat" and other analogous cases (supra), cited before this Court on behalf of the petitioner. This decision of the Division Bench arrived at in relation to an identical proceeding with an identical prayer for quashing of the self-same FIR is undoubtedly binding upon a Single Judge in a subsequent proceeding in which the same prayer for quashing has been made at the instance of a co-accused. If anything, the position of the present petitioner would appear to be weaker even in comparison to Sk. Najmul, the applicant in the previous Revisional application. This is so because the earlier petitioner was admittedly one of the accused persons named in the first FIR, and had undergone a full-fledged trial in that particular case, on account of which he could at least technically raise a contention of being subjected to double jeopardy, which in any case was rejected by the Division Bench. This is however not the case in respect of the present petitioner against whom the allegations have come forth for the first time only in the second FIR which, as held by the Division Bench, do not form a part of the same transaction of offences narrated in the first FIR.

On going through the material collected during investigation, this Court is of the opinion that the same is sufficient enough to put the petitioner to Trial. It is well settled that the criteria in relation to the revisional jurisdiction of the Court under Section 482 CR PC is that it has to be satisfied that sufficient grounds exist to justify a Trial, and not that the available evidence should necessarily result in conviction. For this reason, this Court is not inclined to point out or refer to any particular part of the evidences available against the petitioner in the Case Diary, since that could cause avoidable prejudice to either of the parties during Trial.

With these observations the revisional application is dismissed.