The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Writ Jurisdiction) W.P.(Cr.) No. 483 of 2022 -------- 1. Rajesh Kacchap, s/o Jagarnath Kachhap, r/o Village-Lupung Toli, PO & PS-Namkum, District-Ranchi, Jharkhand-834010. 2. Naman Bixal Kongari, s/o Nicodim Kongari, r/o Sarak Toli, PO-Khunti Toli, PS-Simdega, District-Simdega, Jharkhand-835223. 3. Irfan Ansari, s/o Furkan Ansari, r/o Chidiyakhana, PO & PS-Jamtara, … Petitioners District-Jamtara, Jharkhand-815351. Versus 1. State of Jharkhand, through Secretary, Department of Home, Jail & Disaster Management, Registered office: 2nd Floor, Project Bhawan, PO & PS-Dhurwa, District-Ranchi-834004. 2. State of West Bengal, through Secretary, Home Department, Nabanna 325, Sarat Chatterjee Road, Sibpur, Mandirtala, PO & PS-Shibpur, Howrah- 711102. 3. Union of India through Secretary, Home Department, North Block, Raisina Hill, PO-North Block, PS-North Avenue, New Delhi-110001. 4. Kumar Jaimangal @ Anup Singh, s/o Late Shri Rajendra Prasad Singh, r/o-2 Circular Road, PO-GPO, PS-Lalpur, Ranchi-834001. … Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners For the State of Jharkhand For the State of West Bengal : Mr. Ranjit Kumar, Sr. Advocate Mr. Azim H. Laskar, Advocate Mr. Indrajit Sinha, Advocate Mr. Arpan Mishra, Advocate : Mr. Sachin Kumar, AAG-II : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Amit Kumar Sinha, Advocate Mr. Abhijeet Tushar, Advocate Mr. Rajarshi Singh, Advocate For the Union of India Fort the Respondent No.4 : Mr. Vinod Kumar Sahu, Sr. PC : Mr. A. K. Sahani, Advocate Mr. Ajit Kumar, Advocate -------- J U D G M E N T C.A.V on 24/02/2023 Pronounced on 03/03/2023 This writ petition has been filed by 3 sitting MLAs of the Jharkhand Legislative Assembly. They have questioned registration of zero FIR by the officer-in-charge of Argora PS at Ranchi on the complaint of the respondent no.4 made on 31st July 2022 and transmission thereof to Panchla PS within the district of Howrah (Gramin) in the State of West Bengal. The 2 W.P. (Cr.) No. 483 of 2022 main plank of the petitioners is Kotwali PS Case No. 159 of 2021 which was also registered on the basis of a complaint made by the respondent no.4 on 22nd July 2021 and is still pending investigation. According to the petitioners, the registration of zero FIR dated 31st July 2022 is illegal, without authority of law and tantamounts to second FIR corresponding to Kotwali PS Case No. 159 of 2021. 2. In this writ petition, the petitioners have made the following prayers: “(i) issue a writ of certiorari and/or any other appropriate writ, order or direction to quash/set aside the illegal and arbitrary registration of complaint dated 31.07.2022 (part of Annexure-1) as Zero FIR and consequential transfer of the same being mala fide, arbitrary and void ab initio, and/or (ii) issue a writ of certiorari and/or any other appropriate writ, order or direction quashing/set aside the Transfer of the Complaint/ZERO FIR dated 31.07.2022 being Panchla PS. Case No. 276/2022 dated 31.07.2022 (Annexure-1) u/s 420, 120B, 171(E), 34, 468, 471, 201 and 467 of the Indian Penal Code and sections 7, 11, 12, 8 and 9 of the Prevention of Corruption Act, 1988; and/or (iii) issue or pass any writ, direction or order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.” 3. Briefly stated, on 22nd July 2021, the respondent no.4 who is a sitting MLA from Bermo constituency in the State of Jharkhand provided information to the officer-in-charge of Kotwali PS at Ranchi that in furtherance of a conspiracy to topple the JMM-RJD-Congress coalition government some influential people and financers have arrived at Ranchi, they are staying in different hotels and are trying to allure MLAs. On the basis of his written complaint, Kotwali PS Case No. 159 of 2021 was registered on 22nd July 2021 under sections 419, 420, 124-A, 120-B read with section 34 of the Indian Penal Code, sections 8 and 9 of the Prevention of Corruption Act and section 171-B of the Representation of the Peoples Act. On 30th July 2022, the respondent no.4 gave a similar complaint to Argora PS again raising an apprehension that some political persons are trying to topple the government of the day. A sanha entry was made at 03:00 PM on 30th July 2022 in Argora PS at Ranchi in which the officer-in- charge of Argora PS has made a remark that he himself would make enquiry into the allegations in the said complaint. 4. The sanha entry dated 30th July 2022 which appears at serial 3 W.P. (Cr.) No. 483 of 2022 no. 21 in the Station Diary has been made in the following words: At this hour, Kumar Jaimangal @ Anup Singh, Bermo MLA (Jharkhand) has submitted an application stating that some political persons of Jharkhand are trying to topple the popular and majority Government of Jharkhand by alluring people in different ways. A sanha entry has been made regarding this information. I shall myself conduct the enquiry in this regard. [English Translation] 5. On 31st July 2022, the respondent no.4 gave another complaint to Argora PS at Ranchi raising a similar apprehension and making
Legal Reasoning
allegations against the petitioners on the basis of which zero FIR under sections 420, 124-A, 120-B read with section 34 of the Indian Penal Code, section 171-B of the Representation of the Peoples Act and section 8/9 of the Prevention of Corruption Act has been registered. 6. Before that, at about 05:05 PM on 30th July 2022 the officer-in- charge of Panchla PS had made General Diary Entry of the following information: “By this time myself received information from district control room that one black colour Fortuner car vide Reg. No. JH09-AQ-0016 was coming from Kolkata side towards Kolaghat availing NH-16 and there was huge amount of illegal money. To work out such information myself along with PSI Subhajit Sarkar, C/1384 Gurucharan Hasda, C/0265 Rakesh Mahato and C/1282 Ratindranath Soren (all RAF) proceeded near Ranihati on NH-16 under PS Panchla informing my superior.” 7. Soon thereafter, a Fortuner car bearing Reg. No. JH09-AQ- 0016 moving towards Kolaghat was intercepted at about 05:40 PM and during search huge amount of cash was found in a bag lying in the said vehicle. The total amount of cash in the bag was Rs. 49,98,300/- which was seized and five persons including the present petitioners who were on board the said vehicle were detained. Next day, around 12:04 PM, the complaint of the respondent no.4 vide zero FIR dated 31st July 2022 was transmitted through e-mail to the officer-in-charge of Panchla PS who after informing his superior officers has lodged Panchla PS Case No. 276 of 2022 under sections 420, 120-B, 171-E/34 of the Indian Penal Code read with section 8/9 of the Prevention of Corruption Act. In the counter-affidavit, the State of West Bengal which is the respondent no.2 has provided details of GD Entries made before and after the registration of Panchla PS Case No.276 of 2022 dated 31st July 2022. According to the GD Entries made at Panchla PS, the petitioners who could not provide any satisfactory explanation for possession of huge amount of cash were arrested around 4 W.P. (Cr.) No. 483 of 2022 12.50 PM and, on the same day, an information was received at Panchla PS at around 01:30 PM that investigation of the case has been taken over by the CID of West Bengal. The respondent no.2 has taken a stand that the steps taken by the CID of West Bengal being a separate investigating agency following the statutory procedures from arrest of the MLAs and their production before the competent Court do not violate any of the fundamental, constitutional or legal rights of the petitioners and even otherwise also any defect or illegality in the investigation would have no bearing on competence for taking cognizance of the offence. This is also pleaded that the Income Tax Department has been informed about the incident through letter dated 8th September 2022 and the seized amount has been deposited in the Howrah Maidan Branch of the State Bank of India on 20th August 2022. 8. The State of West Bengal has raised an objection to jurisdiction of the High Court of Jharkhand to entertain the writ petition on the ground that the petitioners have already submitted themselves to the jurisdiction of the High Court at Calcutta. Similarly, the State of Jharkhand has also taken objection to maintainability of this writ petition on the ground that no interference is required in the matter while the matter is under investigation by the West Bengal police. This is the stand of the State of Jharkhand that zero FIR was registered at Argora PS because the crime was committed outside the local area of the police station and Panchla PS Case No.276 of 2022 was lodged after receipt of zero FIR, whereafter the petitioners were arrested. It is stated that the petitioners have approached the High Court at Calcutta in W.P.A No.17739 of 2022 for transfer of investigation in Panchla PS Case No.276 of 2022 dated 31st July 2022 to any other independent investigating agency and the said petition has been dismissed by an order dated 4th August 2022. This order was taken in appeal before a Division Bench of the High Court at Calcutta vide MAT No. 1254 of 2022 and this petition has been dismissed as withdrawn on 10th November 2022. Not only that, the petitioners have filed C.R.M (DB) No.2782 of 2022 under section 439 of the Code of Criminal Procedure in which by an order dated 17th August 2022 they have been granted bail with a condition that they shall appear before the Court as and when their presence is required. Therefore, it is contended that the present writ petition is barred in law by res judicata, 5 W.P. (Cr.) No. 483 of 2022 estoppel and analogous principles thereof. 9. At the outset, I may indicate that by an order dated 14th October 2022 passed by a co-ordinate Bench of this Court the West Bengal police was restrained from filing the charge-sheet in Panchla PS Case No. 276 of 2022. This order was challenged by the respondent no.4 before the Hon'ble Supreme Court through Special Leave to Appeal (Crl.) No.11186 of 2022 which has been dismissed by an order dated 1st December 2022. However,
Decision
the question of maintainability of the writ petition and other questions have been left open to be decided by this Court. 10. The order dated 1st December 2022 passed in Special Leave to Appeal (Crl.) No. 11186 of 2022 titled “Kumar Jaimangal @ Anup Singh v. The State of Jharkhand & Ors.” is reproduced as hereinbelow: “Mr. Vivek Tankha, learned senior counsel appearing for the petitioner, submits that the Jharkhand High Court at Ranchi did not have the jurisdiction to entertain the lis. He submits that the Calcutta High Court has rejected the plea to that effect. Mr. Ranjit Kumar, learned senior counsel appearing for the respondent(s), submits that the view taken by the Calcutta High Court is erroneous and it is only the Jharkhand High Court at Ranchi, which has the jurisdiction to entertain the issue. The High Court is seized of the matter and the matter is kept for hearing today. We are not inclined to interfere with the impugned judgment and order passed by the High Court. The special leave petition is, accordingly, dismissed. However, all the questions including the maintainability can be addressed before the High Court, which will be taken into consideration by the High Court in accordance with law. Needless to state that since the matter is listed today before the High Court, we request the High Court to decide the said issue at the earliest. Pending application(s), if any, shall stand disposed of.” 11. The issue raised by the petitioners which pertains to registration of zero FIR whether or not the same shall tantamount to second FIR has not been decided in the proceedings before the High Court of Calcutta. A prayer seeking transfer of investigation to any independent investigating agency is adjudicated having regard to apprehension of the accused of a biased investigator or investigation and any discussion thereon even though touching upon the jurisdictional issue shall not be conclusive and binding upon the parties. A prayer for bail or transfer of the investigation is necessarily interlocutory in nature and, as shall be the effect of every interlocutory order, any observation or even a finding except a finding of fact rendered by the High Court of Calcutta shall not attract the principle of 6 W.P. (Cr.) No. 483 of 2022 issue estoppel. This principle which is also known as “cause of action estoppel” can be applied where an issue of fact has been tried by a competent Court on a former occasion and a finding has been rendered by the Court on that issue of fact. Simply put, if with respect to an offence arising out of a transaction the accused was tried and acquitted the accused cannot be put to another trial with respect to the offence said to have arisen out of the same transaction where the Court may arrive at a different conclusion – it is different from doubt jeopardy. While so, the petitioners cannot be estopped per rem judicatam and, moreover, the plea of estoppel per rem judicatam is a shield rather than a sword. 12. The jurisdiction of the High Courts under Article 226 of the Constitution of India can be exercised not only for enforcement of fundamental rights but also for enforcement of any legal right. The phraseology used in Article 226 is so comprehensive that it confers very wide powers on the High Courts to issue directions, orders or writs to enable the High Courts to interfere in any matter wherever injustice has been done. In “Century Spinning and Manufacturing Company Ltd.”1 the Hon'ble Supreme Court has held that a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high handed, arbitrary or unjust is entitled to a hearing of the petition on merits. This power under Article 226 of the Constitution is exercised not necessarily within the territorial jurisdiction of the High Court but extends to other territories where also the cause of action has arisen. A cause of action as understood in its ordinary parlance is relevant for exercise of jurisdiction under Clause (2) of Article 226 of the Constitution of India. In “Navinchandra N. Majithia”2 the Hon'ble Supreme Court has held that the amendment in Article 226 of the Constitution by inserting Clause (2) is aimed at widening the width of the area for reaching the writs issued by the different High Courts. When such is the legislative intention, the jurisdiction under Article 226 of the Constitution must be expanded in favor of the litigants. 13. This does not evince any doubt that the High Courts have ample powers under Article 226 of the Constitution to quash a First 1 2