ORDER

Date : 16-07-2018 This appeal was heard on 20.06.2018 and today is fixed for delivery of order.

We have heard Mr. KN Choudhury, learned Senior Counsel for the appellant and Mr. D Mazumdar, learned Addl. Advocate General, Assam for the respondents.

This appeal is directed against the judgment and order dated 15.12.2017, passed by the learned Single Judge, dismissing the writ petition filed by the appellant as the writ petitioner for quashing of the second FIR.

FIR in question is being challenged and sought to be quashed primarily on the ground that it is a second FIR of the same incident or the same transaction; there is an element of sameness and, therefore, the said FIR would not be maintainable.

Appellant is facing prosecution in two cases, one relating to FIR dated 13.05.2010 and the other relating to FIR dated 25.05.2012. It is the legitimacy of the FIR dated 25.05.2012, which is being questioned by the appellant as the second FIR on the same set of facts.

Appellant had contended that following the first FIR dated 13.05.2010, charge sheet was submitted whereafter, subsequent FIR dated 25.05.2012 was filed, subject matter of which directly related to the subject matter of the first FIR.

Contention of the appellant was contested by the State by submitting that both the cases are distinguishable; while the first case relates to misappropriation of Government money and related criminal offences, the second case relates to possession of disproportionate assets. Upon due consideration, learned Single Judge took the view that the two cases arise out of different circumstances and, therefore, the FIR dated 25.05.2012 cannot be said to be the second FIR. Accordingly the writ petition was dismissed.

Hence, this appeal.

At the outset, it would be apposite to extract the relevant portion of the judgment and order passed by the learned Single Judge on 15.12.2017 as under:-

“ 6. In order to appreciate the rival contention, the subject matter of the two cases should be noted at the outset. The 1st FIR was filed following the intimation in the NIA letter No.04/2009/NIA-1280-81 dated 15.03.2010 requesting for a CBI investigation into allegation of misappropriation of Government funds by public servants in North Cachar Hills by misuse of official position, criminal misconduct, forgery, etc. The competent authority gave consent and the criminal process started in the first case.

7. The 2nd FIR was filed when the Officer i.e. the petitioner was found to have acquired huge properties worth Rs.14,02,09,943/-, which included unaccounted hidden cash of Rs.13,45,98,000/-. This was grossly disproportionate to his known source of income.

8. In the first case, the offences are under Section 13(2) read with Section 13(1)(c) & (d) of the P.C. Act and Section 120B, 420, 409, 467 of IPC. But in the 2nd case, the charge related to disproportionate assets under Section 13(1) (e) and 13(2) of the P.C. Act. That apart, the first case involved the sum of Rs.13.5 crores from the bank account of Social Welfare Department relating to the year 2008-09 when Mr. R.H. Khan i.e.

the petitioner, was an employee of the Social Welfare Department in the N.C. Hills. Whereas the 2nd case involved the sum of Rs.14,02,09,943/-, of which Rs.13,45,98,000/- was cash stashed in secret cavity in the wall.

9. The cause of action in the two cases is also distinguishable. In the first case, the cause of action arose when the misappropriation as discovered by NIA was reported to the Secretary vide letter No.04/2009/NIA-1280-81, dated 15.03.2010 and in the 2nd case, the cause of action arose for non- explanation of the petitioner’s hidden assets of above Rs.14 crores, which grossly exceeded his total income of around Rs.25 lakh drawn as CDPO and Deputy Director.

10. In so far as the judgment in T.T. Antony (supra) relied upon by the Sr.

counsel, in the cited case, the initial FIR was filed for the offence of unlawful assembly, rioting, attempt to murder etc. On further investigation, it was fou