TMI Blog2021 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence - Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crore rupees as bribe. Accordingly, the maximum compounding tax which could have been collected was not levied from the company and as a result, the company obtained pecuniary advantage. The petitioner also returned the records to the company without proper verification of the accounts. Thus, the petitioner abused his official position and conspired with the second and the third accused and committed criminal misconduct. 3. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking the relief of quashing Ext.P1 FIR. 4. The factual as well as the legal grounds, on which challenge is raised by the petitioner to Ext.P1 FIR, are narrated in the writ petition. 5. The first respondent has filed a counter affidavit, refuting the contentions raised by the petitioner in the writ petition. The investigating officer, who is the second respondent in the writ petition, has filed a statement regarding the facts of the case. 6. Heard the learned counsel for the petitioner and also the learned Public Prosecutor. 7. The prayer for quashing the first information report is made by the petitioner by filing a writ petition under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied, then the court may interfere. 10. In Bhajan Lal (supra), the following conditions/circumstances are mentioned as illustrations as to when FIR can be quashed by the Court. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizable offence but co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14. It cannot also be found that the allegations made in Ext.P1 FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. There is also no sufficient material to find that the initiation of the criminal proceedings against the petitioner by registering Ext.P1 FIR is manifestly attended with mala fides or that the proceedings are maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner due to the personal grudge of any person. 15. Very recently, in Amish Devgan v. Union of India : (2021) 1 SCC 1, the Apex Court has held as follows: The FIR is not an encyclopaedia disclosing all facts and details relating to the offence. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. He need not necessarily be an eye-witness. What is essential is that the information must disclose the commission of a cognizable offence and the information must provide basis for the police officer to suspect commission of the offence. Thus, at this stage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner as per Ext.P1 FIR is barred under Section 79 of the KVAT Act. (2) The institution of the proceedings against the petitioner as per Ext.P1 FIR is barred by limitation under Section 80 of the KVAT Act. (3) Earlier, another FIR had been registered against the petitioner as Crime No. 500/2011 of Wadakkancherry police station in the same matter. Registration of Ext.P1 FIR, on the same set of allegations and facts, is barred under law. (4) The petitioner was discharged under Section 239 of the Code in the case filed against him on the basis of the final report in Crime No.500/2011 of Wadakkancherry police station. Therefore, he is not liable to be prosecuted and tried for another offence on the same set of facts or allegations. (5) The petitioner cannot be prosecuted or tried on the same set of facts on the principle of issue estoppel. (6) The petitioner was exercising quasi-judicial functions under the KVAT Act and therefore, he is entitled to get the protection under Section 3 of the Judges (Protection) Act, 1985. Bar under Section 79 of the KVAT Act 19. Section 79 of the KVAT Act reads as follows: 79. Bar of certain proceedings.-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has placed heavy reliance upon the decision of this Court in Pavithran v. Poulose (1978 KLT 431) to substantiate his contention that the petitioner is entitled to get immunity from prosecution by virtue of Section 79(1) of the KVAT Act. The decision in Pavithran (supra) has no application to the facts of the present case. In Pavithran (supra), it was found that the act complained of was done by the public servants in the discharge of their official duties and that the act and the duty were so interconnected that the previous sanction of the Government was required for prosecution. 24. Therefore, the plea of the petitioner that he is entitled to get the protection under Section 79 of the KVAT Act is liable to be rejected. Limitation under Section 80 of the KVAT Act. 25. Section 80 of the KVAT Act reads as follows: 80. Limitation for certain suits and prosecutions.-- No suit shall be instituted against the Government and no suit, prosecution or other proceeding shall be instituted against any officer or servant of the Government in respect of any act done or purporting to be done under this Act, unless the suit, prosecution or other proceeding is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 109 of 420 IPC. The allegation against him was that he received illegal gratification of one and a half crore rupees from the company and he assisted the company to continue its activities and thereby, he abetted the act of cheating persons who had deposited money in the company. 30. The petitioner filed an application for discharge under Section 239 of the Code in the case C.C.No.23/2012 before the Chief Judicial Magistrate, Thrissur. The aforesaid application was allowed by the learned Chief Judicial Magistrate and as per the order dated 14.03.2014, the petitioner was discharged. 31. Learned counsel for the petitioner has contended that, registration of Ext.P1 FIR by the VACB, subsequent to the registration of Crime No.500/2011 of the Wadakkancherry police station, was bad in law. Learned counsel would contend that Ext.P1 FIR against the petitioner was registered on the same set of facts and allegations contained in the previous FIR. Learned counsel would contend that, registration of a second FIR on the same set of facts and allegations as contained in the first FIR, is not permissible under law. 32. The law on the question of registration of a second FIR is now fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35. Only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. 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) of the Code. It would clearly be beyond the purview of Sections 154 and 156 of the Code, nay, a case of abuse of the statutory power of investigation in a given case. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of his plea that Ext.P1 FIR is a second FIR based on the same incident. It was a case in which the investigation of the case which was conducted by the State police was taken over by the CBI as per the order of the Apex Court. The CBI registered a second FIR with regard to the same incident on the basis that a larger conspiracy was involved and it required investigation. The Apex Court held that the second FIR registered by the CBI was in respect of the same transaction which was the subject matter of investigation in the previous FIR and therefore, quashed the second FIR. This decision has no application to the facts of the present case. 41. On the other hand, the decision of the Apex Court in Nirmal Singh Kahlon v. State of Gujarat (AIR 2009 SC 984) applies to the facts of the present case. In that case, the Apex Court has held as follows: It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of crime by him as a result whereof all of them had made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble (See State of Bombay v. S. L. Apte : AIR 1961 SC 578 ). 46. Article 20(2) of the Constitution postulates the doctrine of double jeopardy. The objective of this Article is to avoid harassment, which may be caused by successive criminal proceedings, where the person has committed only one crime. The principle is that no man shall be put twice in peril for the same offence. Constitution bars double punishment for the same offence. The conviction for an offence does not bar subsequent trial and conviction for another offence and it does not matter even if some ingredients of the two offences are common. 47. The same set of facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the Indian Penal Code and at the same time constitute an offence under any other law ( See State of Bihar v. Murad Ali Khan: AIR 1989 SC 1 ). 48. The test is to ascertain whether two offences are the same and not the identity of the allegations but the identity of the ingredients of the offences. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently, even for a different offence which might be permitted by law . 52. The principle of issue estoppel has no application here. The doctrine is only concerned with the admissibility of evidence designed to upset a finding recorded by a competent court in a previous trial. That stage has not reached in the present case. Immunity Under Judges (Protection) Act. 53. Learned counsel for the petitioner contended that the petitioner was a public servant exercising quasi-judicial functions under the KVAT Act and Ext.P1 FIR relates to acts done by him in the course of discharge of such functions and therefore, he is entitled to get immunity under the Judges (Protection) Act, 1985. 54. Section 2 of the Judges (Protection) Act, 1985 states that, Judge means not only every person who is officially designated as a Judge, but also every person- (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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