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SUPREME COURT OF INDIA
P. SATHASIVAM & DR. B.S. CHAUHAN, JJ
Amitbhai Anilchandra Shah - Petitioner(s)
Versus
The Central Bureau of Investigation & Anr. - Respondent(s)
WRIT PETITION (CRIMINAL) NO. 149 OF 2012, WRIT PETITION (CRIMINAL) NO. 5 OF 2013
Decided On : 08-04-2013
(2010) 9 SCC 567; (2001) 6 SCC 181; (2004) 13 SCC 292; (2010) 12 SCC 254; AIR 2011 SC 604; (2010) 9 SCC 567 - Relied upon
(2011) 5 SCC 79; (2010) 2 SCC 200 - Referred
(b) Code of Criminal procedure, 1973 - Section 220 - Series of acts part of same conspiracy and intricately connected - Have to be tried in one trial. (Para 28)
(c) Code of Criminal Procedure, 1973 - Section 220 - Two complaints filed in same series of acts - Could be clubbed together and one charge sheet could be filed - Bar in section 234(1) not applicable. (Paras 34 and 38)
(2010) 9 SCC 567; (2001) 6 SCC 181; AIR 1938 PC 130; AIR 1957 SC 340; AIR 1961 SC 1241; AIR 1963 SC 1850 - Relied upon
2012(12) Scale 619; (2010) 12 SCC 254; JT 2013 (3) SC 472; (2009) 1 SCC 441; (1979) 2 SCC 322; (2004) 13 SCC 292; (2002) 1 SCC 714 - Distinguished
(d) Constitution of India - Article 32 - Same series of cognizable offences - FIR lodged and charge sheet filed - Second FIR and second charge sheet also filed - Second FIR and charge sheet violative of Articles 14, 20 and 21 - Writ maintainable - Second charge sheet treated as supplementary charge sheet in first FIR. (Paras 53 and 54)
Facts of the case:
1. In Narmada Bai case Supreme Court, taking note of the fact that the charge sheet has been filed by the State of Gujarat after a gap of 3½ years and also considering the nature and gravity of the crime, rejected the investigation conducted/concluded by the State Police and directed the State police authorities to handover the case to the CBI.
2. After investigation, the CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others for acting in furtherance of a criminal conspiracy to screen themselves from legal consequences of their crime by causing the disappearance of human witness, i.e., Tulsiram Prajapati, by murdering him on 28.12.2006 and showing it off as a fake encounter. Though the said FIR did not specifically name any person, in the charge sheet dated 04.09.2012 filed in the said FIR, the petitioner herein was arrayed as A-1. Further, due to lack of jurisdiction, the charge sheet was presented before the 2nd Additional Chief Judicial Magistrate, (First Class), (CBI Court No. 1), Ahmedabad, Gujarat.
3. Being aggrieved by the fresh FIR dated 29.04.2011 and charge sheet dated 04.09.2012, the petitioner herein has filed this Criminal writ petition u/Art. 32.
Finding of the Court:
Killings of Sohrabudding, Kauserbi and Tulsiram are one series of acts and part of same conspiracy.
Result : Writ petition allowed.
Key Points: - Filing a second FIR for the same cognizable offence or same series of acts is impermissible and violates Article 21 of the Constitution (!) (!) (!) . - A charge sheet filed after a second FIR must be treated as a supplementary charge sheet in the first FIR, not as a fresh prosecution (!) (!) (!) . - Only the earliest FIR satisfies the requirements of Section 154 of the Code; subsequent information in the same transaction must be dealt with through further investigation under Section 173 CrPC (!) (!) (!) .
JUDGMENT
P. Sathasivam, J.
1) Amitbhai Anilchandra Shah has filed the present Writ Petition being No. 149 of 2012 under Article 32 of the Constitution of India owing to the filing of fresh FIR being No. RC-3(S)/2011/Mumbai dated 29.04.2011 by the Central Bureau of Investigation (CBI) and charge sheet dated 04.09.2012 arraying him as an accused in view of the directions given by this Court to the Police Authorities of the Gujarat State to handover the case relating to the death of Tulsiram Prajapati - a material witness to the killings of Sohrabuddin and his wife Kausarbi to the CBI in Narmada Bai vs. State of Gujarat & Ors., (2011) 5 SCC 79.
2) In Narmada Bai (supra), this Court, taking note of the fact that the charge sheet has been filed by the State of Gujarat after a gap of 3½ years and also considering the nature and gravity of the crime, rejected the investigation conducted/concluded by the State Police and directed the State police authorities to handover the case to the CBI. After investigation, the CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others for acting in furtherance of a criminal conspiracy to screen themselves from legal consequences of their crime by causing the disappearance of human witness, i.e., Tulsiram Prajapati, by murdering him on 28.12.2006 and showing it off as a fake encounter. Though the said FIR did not specifically name any person, in the charge sheet dated 04.09.2012 filed in the said FIR before the Court of Judicial Magistrate First Class, Danta District, Banaskantha, Gujarat, the petitioner herein was arrayed as A-1. Further, due to lack of jurisdiction, the charge sheet was presented before the 2nd Additional Chief Judicial Magistrate, (First Class), (CBI Court No. 1), Ahmedabad, Gujarat.
3) Being aggrieved by the fresh FIR dated 29.04.2011 and charge sheet dated 04.09.2012, the petitioner herein has filed the above said writ petition on the ground of it being violative of his fundamental rights under Articles 14, 20 and 21 of the Constitution and contrary to the directions given in Narmada Bai (supra).
Writ Petition (Criminal) No. 5 of 2013:
4) Sangiah Pandiyan Rajkumar IPS-who was arrayed as A-3 in the charge sheet dated 04.09.2012 has filed the above said writ petition praying for similar relief as sought for in Writ Petition (Crl.) No. 149 of 2012. Since the grievance of the above-said petitioner is similar to that of the petitioner in W.P. (Crl.) No. 149 of 2012, there is no need to traverse those details once again.
5) Heard Mr. Mahesh Jethmalani, learned senior counsel for the petitioner in W.P. (Crl.) No. 149 of 2012, Mr. K.V. Viswanathan, learned senior counsel for the petitioner in W.P. (Crl.) No. 5 of 2013, Mr. H.P. Rawal, learned Additional Solicitor General for the CBI and Mr. Tushar Mehta, learned Additional Advocate General for the State of Gujarat.
Discussion:
6) A perusal of the prayer in the writ petition clearly shows that the petitioner is not seeking quashing of investigation, however, praying for quashing of second FIR being No. RC-3(S)/2011/Mumbai dated 29.04.2011 and also praying that the charge sheet dated 04.09.2012 in respect of the said FIR be treated as supplementary chargesheet in first FIR being No. RC No. 4S of 2010 so that his fundamental right under Article 21 is not infringed.
7) Mr. Mahesh Jethmalani, learned senior counsel for the petitioner pointed out that the reliefs sought for are in consonance with the law laid down by this Court in C. Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC 567. He very much relied on para 37 of the said judgment which holds as under:
“…..Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge sheet could not be filed”
8) It is also pointed out by learned senior counsel for the petitioner- Amit Shah that the above said prayer is based upon CBI’s own finding that the offence covered by the Sec
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