Sri Pranabjyoti Barman V. The Union of India and Director, Central Bureau of Investigation

Crl.Pet./1516/2019

AI Insights

The case involves Sri Pranabjyoti Barman, who is accused in two separate FIRs related to similar allegations under the Prize Chits and Money Circulation Schemes (Banning) Act and IPC sections concerning cheating and criminal conspiracy. The petitioner argued that proceeding with the second FIR would lead to double jeopardy, violating Article 20(2) of the Constitution. The CBI contended that despite the similarities, the cases were distinct due to different complainants and specific circumstances. The court examined the FIRs and previous judgments to determine if the second FIR could stand independently or if it was merely a reiteration of the first.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 818979 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 22-02-2021
• Assessment Year: misc
• Other Referred Cases: Anju Chowdhury \\u2013Vs- Uttar Pradesh, Babubhai \\u2013Vs- State of Gujarat, Dipu Datta \\u2013Vs- State of Assam, Debajit Das \\u2013Vs- State of Assam, Pranita Das \\u2013Vs- State of Assam, Suman Roy & Anr. \\u2013Vs. CBI & Anr.
• Laws Referred To: Indian Penal Code, Prize Chits and Money Circulation Schemes (Banning) Act, Code of Criminal Procedure
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S C KEYAL; P DAS
• Assessee Lawyers: B BARMAN
• Keywords: CBI investigation; Charge Sheet; Criminal Procedure; Criminal Procedure; Double jeopardy; FIR; Money Circulation Scheme
• Section: 5; 3; 4; 401; 482; 120-B; 120-B; 420; 406; 162; 397

Judgement Text

"Page No.# 1/14 GAHC010310442019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Criminal Petition No. 1516/2019 Sri Pranabjyoti Barman, S/o Dr. Pramode Chandra Barman, Resident of House No. 31, Rukmini Nagar, Namghar Path, P.S.- Dispur, Guwahati – 7, Kamrup (M), Assam …… Petitioner. -Versus- 1. The Union of India, Represented by the Ministry of Home Affairs, New Delhi. 2. Director, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi, Pin – 110003, though its Standing Counsel. …… Respondents. Advocate appeared for the appellant : Mr B Barman. Advocates appeared for the respondents : Mr S C Keyal, Ms P Das. BEFORE Page No.# 2/14 HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of Hearing : 28.01.2021 Date of Judgment : 22.02.2021 JUDGEMENT AND ORDER (CAV) Heard Mr B Barman, learned counsel for the petitioner. Also heard Mr S C Keyal, learned Standing Counsel appearing for the respondents/CBI. 2. The petitioner, herein, is facing trial as one of the accused in CR(Special) Case No. 2966/2015, under Sections 120 (B)/ 406/420 IPC, read with Sections 3, 4, 5 of Prize Chits and Money Circulation Schemes (Banning) Act, pending before the learned Special Magistrate, Kamrup (M). On the basis of an FIR, dated 03.07.2014, CID Case No. 14/2011 was registered, but subsequently, as per Government notification, the case was transferred to CBI, and CBI after due investigation submitted charge sheet on 14.12.2015, which has now been registered as CR Special Case No. 2966/2015 and the case is at the stage of consideration of charge. 3. The grievances that has been raised by the petitioner that prior to the FIR of the present case, another case was filed against the petitioner, more or less on identical and similar allegations, being numbered as BIEO PS Case No. 35/2010, under Sections 120(B)/420 IPC, read with Sections 3/4/5 of the Prize Chits and Money Circulation Schemes (Banning) Act, and after completion of the investigation, the case has been ended at charge sheet, which has been registered as GR Case No. 9803/2010. It is the case of the petitioner that BIEO case having been instituted at earlier point of time on similar allegations, registration of the subsequent FIR at CID is bad in law and same could have been treated as statement under Section 162 CrPC. Raising the aforesaid grievances, the petitioner filed a petition before the trial Court that the CR (Special) Case No. 2996/2015 is not maintainable and prayed for dropping of the proceeding against him. The CBI objected to the said Page No.# 3/14 prayer on the ground that although both the cases seem to be similar and identical, but the complainant, place of occurrence and sections of law mentioned in FIRs are different from each other. The learned trial Court by impugned order dated 13.11.2019 has rejected the prayer, holding that the learned trial Court being at the lowest level in the criminal Court (JMFC) cannot drop its own proceeding and it would be beyond its jurisdiction. 4. Being aggrieved with the aforesaid order, the petitioner is, before this Court by way of this petition under Section 482 CrPC, read with Section 397/401 of the CrPC, that the aforesaid two proceedings cannot run against the same person and if the present case is allowed to proceed, then there will be double jeopardy in respect of the present petitioner, which will violate the provision of Article 20 (2) of the Constitution of India. 5. The respondent (CBI), has filed the affidavit, resisting the petition, contending that ingredients of different sections invoked in the two FIRs in GR Case No. 9803/2010 and CR (Special) Case No. 2996/2015, although identical, but the complainant, place of occurrence are different. It further contends that accused petitioner could not convince the learned Court of Special Judge, whether Sanjay Kumar Sarkar/informant in the other case has been brought into the investigation made by the BIEO and hence, quashing of the FIR will cause injustice to the informant of the other case, and the same aspect has also been noticed by the learned Special Judge. It has been submitted that the petition is devoid of merit and liable to be dismissed. 6. The learned counsel for the petitioner has drawn the attention of this Court to the FIRs pertaining to the aforesaid two cases and has urged before this Court that going by the content of both the FIRs, it will reflect that exactly on similar accusations, both the FIRs have been filed, save and except, the informant in both the cases are different. Placing reliance to the decision of Anju Chowdhury –Vs- Uttar Pradesh; (2003) 6 SCC 384, it has been submitted that there cannot be two FIRs registered on the same offences, which have been provided to save the litigants from double Page No.# 4/14 jeopardy. The petitioner contends that the learned trial Court is fully empowered to discharge the accused or to drop the proceeding when the case is not maintainable. But same has not been exercised by the learned trial Court, which has occasioned a serious prejudice to the petitioner. It submits that further proceeding of the present subsequent case will result serious injustice to the petitioner and hence, liable to be interfered by this Court, in view of settled principle of law. 7. In support of the contention, the learned counsel for the petitioner has relied upon the following decisions:- 1) (2013) 6 SCC 384; Anju Chaudhary –Vs- State of UP & Anr. 2) (2010) 12 SCC 254; Babubhai –Vs- State of Gujarat & Anr. 3) Judgment and order in Criminal Petition Nos. 741/2017 and 541/2017 of Hon’ble Gauhati High Court (Dipu Datta –Vs- State of Assam and Debajit Das –Vs- State of Assam) 4) Judgment and order in Criminal Petition Nos. 1028/2016 and 989/2016 of Hon’ble Gauhati High Court (Pranita Das –Vs- State of Assam) 8. The learned counsel for the respondent has relied upon the decision of the Hon’ble Gauhati High Court in Suman Roy & Anr. –Vs. CBI & Anr.; 2019 0 Supreme (Gau) 147. 9. Due consideration has been given to the arguments advanced by the respective parties and also gone through the decisions relied. 10. To appreciate the real controversy over the matter that whether both the FIRs are pertaining to the same incident and identical, let us reproduce the content of both the FIRs. The first FIR dated 09.12.2010, which was registered as BIEO Case No. 35/2020, reads as follows:- Page No.# 5/14 “To, The Officer In-Charge, B.I.(E.O.) Police Station, Assam Shrimantapur Guwahati. Sub: FIR. Sir, I am to inform you that Uni-pay 2U is a non-banking financial company having its own offices in Guwahati, one at Chandmari and the other at Christian Basti, Guwahati. The NBFCs cannot accept demands deposits without having proper registration from Reserve Bank of India. But Uni-pay 2U Company indulging public to deposit money and offer incredible return on deposited amount where the Company is a part of the payment settlement system and hence cannot issue cheques. This Company is carrying its business under the guise of providing gold and goods illegally. This company introduces pyramid structure money circulation scheme and indulges public to deposit money for quick and easy returns. The company has its head office at Malaysia and other main office at Bangalore. In Guwahati, Sri Pranab Jyoti Barman is running Uni-pay 2U office at Chandmari and Sri Keshab Kanti Sarma at Christian Basti. It is suspected that this company will close its office in Guwahati soon after collecting huge amount of money from public. The company is not entitled to indulge public to deposit money or make any settlement without having a valid certificate of registration from Reserve Bank of India. Therefore, I request you kindly to register a case against the office bearers of the company under proper section of law. Yours faithfully, Sd/- Upen Chetry, Dy. SP, B.I.(E.O.), Assam, Guwahati. 09/12/2010” 11. The same FIR has ended at charge sheet, which is registered as GR Case No. 9803/2010, under Sections 120(B)/420 IPC, read with Sections 3/4/5 of the Prize Chit and Money Circulation Scheme (Banning) Act. Page No.# 6/14 12. So far as the second FIR is concerned, it was filed as a complaint case No. 483c/2011, which was forwarded to CID and registered as CID PS Case No. 14/2011 and subsequently, it was transferred to CBI, who registered the said FIR as RC2192014E0008 dated 03.07.2014 and same was charge sheeted pertaining to GR Case No. 9803/2010. The second FIR was filed by one Sanjay Kumar Sarkar before the learned CJM, Kamrup, Guwahati, which reads as follows:- “CR Case No. 489 C /2011 An application under Section 200 of CrPC, 1973 Name of the complainant : Sri Sanjay Kumar Sarkar, S/O Sri Sunil Kumar Sarkar, R/o D-2, Kailash Apartment, 39 H.S.Road, Paltan Bazar, Guwahati – 781008, District – Kamrup (M), Assam. Name of the accused person : 1. Mr. Mugundhan Gangam MD of UNI PAY 2 U MARKETING PVT. LTD. and Authorized signatory/representative of UNI GATEWAY 2U TRADING PVT. Ltd. R/o.- No. 23, Jalan Jiran, 25/57, Taman, Srimuda, Shah Alam, Selangor, 40400, Malaysia. 2. Mr Sellathurai Baskar Director of UNI PAY 2 U Marketing PVT. LTD. & UNI GATEWAY 2 U TRADING PVT. LTD. R/o – D. NO. 53/3D. Vinayakarpuram, Near Arasupannai, Page No.# 7/14 Devakotta, Post and 3. Mr Chelladurai Amalraj Director UNI, GATEWAY 2 U Trading Pvt. LTD. R/o – 53/3D Vinayagarpuram, Near Govt. Agri farm, P.O.- Devakottai, Dist. – Sivagangai, PIN – 630302, Tamil Nadu. 4. Mr Pranab Jyoti Barman, In-charge of Independent Service, Centre of UNI PAY 2 U Marketing PVT. Ltd. & UNI GATEWAY 2 U TRADING PVT. LTD. at House No. – 13/A, Nizarapar, Chandmari Colony, Guwahati – 781003, Assam. Ph. No. 0361-2666028. Nature of Offence : Offence committed under Sections 420 406 of the Indian Penal Code, 1860. Name of Witness : 1. Partha Dey, D/o Sankar Dey, Block D, Baskar Nagar, Kalapahar, Guwahati – 18. 2. Moni Moy Deka, S/o – Nagen Chandra Deka, R/o- Chatribari, Guwahati -1 3. and others. Cause of action : 29.05.2010, 15.06.2010, 30.07.2010. The humble petition of the above named complainant Page No.# 8/14 MOST RESPECTFULLY SHEWETH:- 1. That Sri Sanjay Kumar Sarkar, S/o- Sri Sunil Kumar Sarkar, resident of Flat No. D-2, Kailash Apartment, 39 HS Road, Paltan Bazar, Guwahati – 781008, hereinafter, referred to be the complainant. 2. That the accused persons are respective Directors and the In-charge of the companies, namely (a) UNI PAY 2 U Marketing Pvt. Ltd. (b) UNI GATEWAY 2U Trading Pvt. Ltd. 3. That the company, namely, UNI PAY 2 U Marketing Pvt. Ltd. is a registered company under the Companies Act, 1956, having corporate identity No. U74999TN2009PICO71782 (2009-2010), issued by the Registrar of Companies, Chennai. That the Company got registered under the Registrar of Trade Mark bearing No. 1883317 and 1883318. That the company is having its corporate office at House No. 223, 5th Main, 5th Cross, Ganga Nagar, Bangalore – 560032, Karnataka and Independent Service Centre at House No. – 13/A, Nizarapar, Assam. That the company has also obtained Trade Licence for doing business in Assam from Guwahati Municipal Corporation, being the licence No. 74983, 165/20, dated 11-05-2010. That the company got permanent account No. – AABCUO844L from the Income Tax Department and TIN No. – 291 20865186 from the Sales Tax Department. 4. That the company namely UNI GATEWAY 2U Trading PVT. Ltd. is also a registered company having corporate identity number U74130KA2010PTCO54660, issued by the Registrar of Companies. That company got permanent account No. from the Income Tax Department bearing No. AABCU2043B. That the company is having corporate office at No. 223, 5th Cross, Ganga Nagar, Bangalore – 560032, Karnataka and Independent Service Centre at House No. 13/A, Nizarapara, Chandmari Colony, Guwahati -781003, Assam. Page No.# 9/14 5. That the company Directors fraudulently introduced their companies as gold trading company and accepting deposit from the public of the entire North Eastern Region offering lucrative return on investment. 6. That the company officials approached the complainant to invest in one of the investment plan and accordingly, the complainant had invested in the company’s investment plan by opening an I.D. 7. That, the complainant had invested an amount of Rs. 5,00,000/- (Rupees Fve Lakhs) only at Visarav through UNI GATEWAY 2U Trading Pvt. Ltd., on 31 st July, 2010 and Rs. 82,500/- on 29.05.2010 and Rs. 1,51,00/- on 15.06.2010, at UNI-PAY 2U Marketing Pvt. Ltd. 8. That the company directors as well as other officials of Guwahati office at present are avoiding the complainant with a malafide intention to cheat the complainant. That the complainant tried his level best to contact the company directors, but failed to do so. That the complainant come to know that the Directors of both the companies instructed to close down the Guwahati office and has not yet intimated the complainant about the investment made in the company. 9. That the complainant submitted that the Directors of both the companies very clearly obtained registration from the Registrar of Trade Mark in connivance with some corrupt official, wherein the companies were registered as Investment and financial service provider, but no licence has been obtained from the Reserve Bank of India and thereby causing serious breach of trust. 10. That the Directors of the Companies having criminal intention has not yet returned the complainant’s money despite of the several requests made by the complainant and it has become imperative to nab the accused persons as they might fled away. Page No.# 10/14 11. That, the accused persons/company director in a bid to attract the investors presenting fake documents of Income Tax Department. 12. That, the action of the accused person is an offence punishable under Sections 420/406 of the Indian Penal Code, 1860. That the complainant has sufficient evidence with him for cognizance of the offence committed by the accused person/Directors. It is therefore most humbly prayed before Your Honour to kindly admit the petition and take cognizance of the offence committed by the accused person and punish the accused person in accordance with law. And for this act of kindness, the abovenamed complainant as in duty bound shall ever pray.” 13. As against the aforesaid FIR, charge sheet, was filed against the five directors of M/s Unipay 2 U Marketing Private Limited and the present petitioner, Pranab Jyoti Barman, as independent In- charge of Guwahati NE Centre of M/s Unipay 2 U, under Sections 120(B)/406/420 IPC and read with Section 3/4/5 of the Prize Chit and Money Circulation Scheme (Banning) Act. 14. The charge sheet submitted in the subsequent case reveals that all details of the affairs of the company, M/s Unipay 2 U has been investigated thoroughly and, thereafter, charge sheet has been filed as against all the directors of the company, including the present petitioner, who is stated to be an independent distributor. The sum and substance of the allegation in both the FIRs are exactly same. The first FIR was filed by one of the officers of BIEO, without any specific cause of action that the said company indulges public to deposit money and accused petitioner, Pranabjyoti Barman is running his office at Chandmari and a suspicion was raised that the company will close its office soon after collecting money and thus, it was mere presumption and assumption as about the affair of the Page No.# 11/14 company. Till that point of time, no other specific allegation as about the conduct of the present accused petitioner was made. But, however, in the second FIR, specific allegation has been made by a private/ aggrieved person as against the company directors as well as the officials, including the petitioner that money invested by him in 2010 has not been returned, hence, cheated. The allegation in both the FIRs is exactly same, but in the second FIR, specific cause of action has been mentioned and only the informant in both the cases are different. The informant in the second FIR may not be examined in the first FIR (which is not reflected in the present petition), but the fact remains that in both the cases, investigation is carried out against the same set of persons for the same cause of action and under same section of law and occurrence is of same year 2010 15. In T T Antony –Vs- State of Kerala & Ors.; AIR 2001 SC 2637, the Hon’ble Supreme Court dealt with a case, where in respect of same cognizable offence and occurrence, two FIRs have been lodged and the Court held that there cannot be any second FIR and more fresh investigation on receipt of every subsequent information, in respect of 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 CrPC and all other subsequent information would be covered by Section 162 CrPC for the reason that it is the duty of the IO 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 IO has to file one or more reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the IO 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 and forward the further evidence, if any, with further report or reports under Section 173 (8) of the CrPC. In case, the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in Page No.# 12/14 effect, be a second FIR and the same is not in conformity with the scheme of the CrPC. The Court further observed as under:- “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 CrPC empowers the Police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. 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) of the CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 under way 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 CrPC or under Articles 226/227 of the Constitution.” 16. In Babubhai –Vs- State of Gujarat; (2010) 12 SCC 254, it has been held that an FIR under Section 154 of the CrPC is a very important document. It is the first information of a cognizable offence recorded by the Officer-In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 of the CrPC, as the case may be, and forwarding of a Police Report under Section 173 of the CrPC. Thus, it is quite possible that more than one piece of information be Page No.# 13/14 given to the Police Officer In-Charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 CrPC. 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. 17. In the light of aforesaid settled propositions of law and applying the test of sameness, if we read the two FIRs together it becomes clear that both the FIRs have been filed referring to the same incident of the year 2010. In Anju Chaudhury (supra), it has been held that where several offences are a part of same transaction, the “test of sameness” has to be applied, whether they are so related to one another on the point of purpose or cause and effect, so as to result in a one continuous action. It has been held that second FIR in respect of same offence forming part of same transaction as complained in the first FIR is not permissible. Commencement of the re-investigation after completion of previous investigation, pursuant to the first FIR and filing of report based on such investigation before the Court is not permissible. Further, it has been held that inbuilt safeguards provided under the CrPC are principles akin to double jeopardy, fair investigation and prevention of abuse of power by investigating agency. 18. The decision of Suman Roy (supra), relied upon by the respondent, is not applicable in the Page No.# 14/14 present case, as in the aforesaid case, offence was different in nature, one of which is triable by the learned CJM and the other is exclusively triable by the learned Special Judge, being the offence under Prevention of Corruption Act and hence, FIR pertaining to different offences was not quashed. But the case in hand as discussed above, offence is exactly the same. 19. In view of the findings and discussions above, this Court is of the opinion that instead of quashing the second FIR, it would be suffice if the second FIR is treated as statement under Section 162 CrPC. Accordingly, it is directed that learned trial Court will proceed with the matter by clubbing both the cases together by the same Court, by treating the second FIR as statement under Section 162 CrPC. 20. The present petition stands disposed of in terms of the observations and directions as above. JUDGE Comparing Assistant "