TMI Blog2018 (6) TMI 1803X X X X Extracts X X X X X X X X Extracts X X X X ..... he search and seizure was conducted by Income Tax Department in the premises of A-1 Sekar Reddy, at Chennai on 8/9/12.2016 and on consecutive days the amount was recovered. Further, it is also clear that the cases have been registered on purported information received from Income Tax Department regarding search and seizure of currency in new denomination concerning the same accused. Further, the averments in two subsequent FIRs makes it clear that the allegations in them is connected to the offence alleged in the first FIR in RC MA1 2016 A0040. A careful perusal of the stand taken by CBI would have no manner of doubt that the reliance has solely been placed on the searches/seizures carried out by the Income Tax Department on 8/9.12.2016. Therefore, to contend that the allegations mentioned in FIR are different and constitute distinct and separate transaction, is absolutely untenable. Pertinently, no independent or separate materials have been gathered by the respondent apart from the proceedings carried out by the Income Tax Department. Further the averments made by the respondent that the petitioners have hatched a conspiracy with unknown public servants also cannot be counten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The 4th accused filed Crl.O.P.No.560 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0051 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. The 5th accused filed Crl.O.P.No.561 of 2017 seeking to quash the FIR in Crime No.RC MA1 2016 A0051 registered by the Respondent Agency for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. 3. According to the petitioners, the Income Tax Authorities conducted search operations on 08.12.2016 and seized Rs.24 Crores of new currencies of M/s.SRS Mining from a Tata Ace load vehicle belonging to one Shri Rishi Kumar in Vellore on 09.12.2016, following the searches and seizure effected at the premises of M/s.SRS Mining and other accused at Chennai. 3.1. Seizure of Rs.8 Crores of new currencies in Rs.2000/- denomination from the premises of M/s.SRS Mining at No.36, Sudhama Building, Flat No.1, 1st Floor, Rear Block, Vijayaraghava Road, T.Nagar, Chennai-17. 3.2. Seizure of 1.63 Crores of new currencies in Rs.2000/- denomination from the premises of M/s.SRS Mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by the concerned Court on 30.12.2016 After the concerned trial Court rejected the prayer for police custody on 30.12.2016, the respondent agency registered two FIRs namely, FIR No.RC MA1 2016 A0051 and FIR No. RC MA1 2016 A0052 on the same day viz., 30.12.2016 at 15.00 and 15.10 hours respectively to circumvent the rejection order passed by the Special Judge for CBI Cases and to secure police custody. 6. The petitioner further contended that while the investigation was going on in the above said FIR No. RC MA1 2016 A0040, the respondent agency registered another FIR No. RC MA1 2016 A0051 on information received from the authorities of the investigation wing of the Income Tax Department, Chennai regarding the seizure of Rs.8 Crores of new currency in 2000 rupees denomination from the premises of M/s.SRS Mining at No.36, Sudhama Buildig, Flat No.1, 1st Floor, Rear Block, Vijayaraghava Road, T.Nagar, Chennai-17 on 09.12.2016. Likewise, the case in Crime No.RC MA1 2016 A0052 was registered by the respondent agency on information received by CBI, ACB Chennai from the authorities of investigation wing of Income Tax Deparment, Chennai regarding seizure of Rs.1.63 Crores o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted searches on 8/9.12.2016 in the premises of the second accused and seized 30 Kg gold bars worth about Rs.9 Crores and a sum of Rs.2 Crores in demonetized currency belonging to A-1, A-4 and A-5. The unaccounted cash of Rs.11 Crores in demonetized currency was provided by A-1 to A-2 through A-3 for purchase of gold bars. Accordingly, A-2 Premkumar converted Rs.9 Crores into 30 Kg of gold bars and another Rs.2 Crores in demonetized currency was kept ready for conversion into gold bars. Thus, the accused persons in collusion with the unknown Bank Officials purchased gold bars to the tune of 30 Kgs by using unaccounted demonetized currency belonging to A-1, A-4 and A-5. Thus, the respondent contends that the accused were involved in converting old demonetized currency into new 2000 rupees currency. Further, in para 11 of the Memorandum of objection filed in Crl.O.P.No.409 of 2017, relating to FIR No.RC MA1 2016 A0051, the respondent has stated as follows:- 11. The averments made in Para Nos.5 and 7 are denied . It is submitted that the petitioner/Accused-1 was arrested on 21.12.2016 at 12.30 hours only in RC.MA1 2016 A0040 and not as alleged. It is further submitted that the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight envisaged under the Constitution of India in remanding the accused persons in this case. Contrary to the claim of the petitioner, the allegations mentioned in the FIRs are not one and the same if the Test of 'Sameness' is applied to the case as laid down in Babubhai Vs. State of Gujarat and other . The cases are distinct and separate transactions and connected only by the common accused. 9. The learned Special Public Prosecutor for CBI Cases further contended that the allegations against the accused is not mere holding of demonetized currency notes, but about the method adopted by them to process the same in huge quantities as the result of conspiracy with public servants. Merely because, the petitioners have explained their source of income to the Income Tax Department, they cannot be absolved from the crime. The petitioners entered into a criminal conspiracy including unknown Bank Officials to convert demonetized unaccounted currency in the new currency and gold bars with an intention to cheat the Government of India. The role of public servants involved in the act is under investigation. As such, the two FIRs registered in FIR Nos.RC MA1 2016 A0051 and RC MA1 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was effected pursuant to the search and seizure carried out at the premises of A-1 to A-3. As such, the petitioners contended that the first FIR registered in RC MA1 2016 A0040 is comprehensive in nature and covers the seizures, which have been subsequently made part of two separate FIRs RC MA1 2016 A0051 and RC MA1 2016 A0052. Thus, the petitioners contends that the registration of two subsequent FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 is improper, illegal and without jurisdiction. 12. Further, pointing out the admission of the respondent in the Memorandum of objection filed in the above said Crl.OPs, the learned counsel for the petitioners contended that the search and seizure forming the basis for registering the two subsequent FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 were earlier in point of time, than the FIR No.RC MA1 2016 A0040 registered on 19.12.2016 and therefore there was no need or reason for the respondent to wait till 30.12.2016 to register the two subsequent FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052. Thus, the petitioners contends that the Subsequent FIRs were registered only to over come the order passed by the learned Special Judge for CBI C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988 and subsequent two FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 dated 30.12.2016 was lodged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. In FIR No.RC MA1 2016 A0040 the suspected offence has been shown as criminal conspiracy, cheating and criminal breach of trust. The date of suspected offence is 08.12.2016 and entry taken on 19.12.2016. The place of occurrence is alleged to be Chennai and Vellore. The first para of information shows that the information was received by CBI, ACB, Chennai from the authorities of Investigation Department of Income Tax, Chennai regarding seizure of Rs.24 crores of new currency from the Tata Ace load vehicle belonging to one Rishi Kumar at Vellore on 09.12.2016 following the search and seizure at the premises of A1 to A3. The second FIR No.RC MA1 2016 A0051 is also registered under the same provisions and the place of occurrence is stated as Chennai and Vellore. The information received was on 09.12.2016 i.e., the same date from the same agency, i.e., the Income Tax Department, Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate 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 Cr.P.C. 20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162,169,170 and173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. and consequently there can be no fresh investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F INVESTIGATION AND ANOTHER, wherein it has held as follows:- 37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. 58.3 Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155,156, 157,162, 169, 170and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report 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 the Investigating Officer has to file one or more reports under Section 173Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code who is competent to take cognizance under Section 190. Upon such order, the investigating officer shall conduct investigation in accordance with the provisions of Section 156 of the Code. The specified Magistrate, interms of Section 190 of the Code, is entitled to take cognizance upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 14. On the plain construction of the language and scheme of Sections 154,156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIRs are one and the same incident as stated in first FIR or continuous one or part of the same transaction. A cumulative and conjoint reading of the two impugned FIRs with FIR No.RC MA1 2016 A0040 would leave no manner of doubt that they arise out of a common substratum as they have been registered on purported information received from the Income Tax Department regarding the search and seizure of currency in new denomination concerning the same set of accused. On the face of it, the first FIR in RC MA1 2016 A0040 itself refers to all the search and seizure carried out by the Income Tax Department, which now form the basis for registering the impugned FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052. It is evident from the materials available on record that the seizures effected by Income Tax Department have been made in the course of same occurrence and composite transaction which are linked together by a common thread. As such this Court is of the view that this case will clearly fall within the parameters laid down in T.T.ANTONY's case(supra) as well as AMITBHAI ANILCHANDRA SHAH's case (supra). 23. Further, as rightly pointed out by the learned counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use of dispose of that property or wilfully suffer any other person to do so; and (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. However, going through the materials on record, it is apparent that no such ingredient is available in the present case. 26. Likewise, the learned counsel appearing for the petitioner relying upon the ruling reported in 1970 (1) SCC 696 in NOORMOHAMMED MOHD. YUSUF MOMIN Vs. STATE OF MAHARASTRA, contended that there is nothing on record to make out any offence under Section 120 IPC and that any conspiracy is generally hatched in secrecy and admittedly it can be proved only by circumstantial evidence. Though proof of conspiracy may be largely be inferential but the inference must be found on solid facts. Thus, the contention of the petitioners that in the case on hand, there is no such thing alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no independent or separate materials have been gathered by the respondent apart from the proceedings carried out by the Income Tax Department. Further the averments made by the respondent that the petitioners have hatched a conspiracy with unknown public servants also cannot be countenanced in the absence of any public servant or Bank being identified so far. The learned counsel for the petitioner relying upon the ruling reported in 1982 (1) SCC 561 in STATE OF WEST BENGAL AND OTHERS Vs. SWAPAN KUMAR GUHA AND OTHERS, contended that general, vague allegation cannot be made the basis for initiating legitimate investigation. In the said Ruling it is held as follows:- 21. The position which emerges from these decisions and the other decisions which are discussed by Brother A.N. Sen is that the condition precedent to the commencement of investigation under section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
