- (1.) C .A.V. On 05/05/2014 Delivered on 12/05/2014 Both the cases have been filed for quashing of the first information 19/12.05.2014 report of R.C. Case No. 07(S)/2010 -AHD -R, registered under Sections 120B, 420, 467, 468, 471 of the Indian Penal Code and also under Section 21 of the MMDR Act.
(2.) BEFORE adverting to the submissions advanced on behalf of the parties, the facts of the cases, needs to be taken notice of. The Deputy Commissioner, West Singhbhum at Chaibasa, constituted a task force for checking illegal mining and its transportation. The task force collected statements from the District Transport Officer, West Singhbhum, Chaibasa as well as from the authority of Noamundi Railway Station relating to transportation of the iron ore for the period from January to February, 2010, relating to several Firms namely Tirupati Balaji Enterprises Private Limited, Maa Tarini Minerals, Devansh Export, Sara International Private Limited and Apical Exim Private Limited (petitioner in Cr.M.P. No. 1806/2011). Binod Ram (petitioner in Cr.M.P. No. 2777/2012) happens to be the Staff (Manager) of M/s Apical Exim Private Limited. Upon inquiry being made, it was found in the case of the petitioners that on 17/02/2010, 3898.290 M.T iron ore had been transported from railway siding to Monate Steel and Energy Limited under transit permit (Form -D), which had been issued by the Mining Department, Chaibasa. On making verification of the vehicles under which iron order was claimed to have been transported to railway siding, it was found that 95 vehicles had been used, out of which when number of vehicles was verified, 12 were found to be Motorcycle and 2 were found to be Maxi. Over each of the vehicles 36 -39 M.T of iron ore had been shown to have been transported. Same quantity of iron ore was sown to have been transported by each of other vehicles, capacity of which was 16.220 and 25 M.T. Thus, it was alleged in case of other Firms that they had transported iron ore but it had no mining lease. So far petitioner's Firm Apical Exim Pvt. Ltd. is concerned, suspicion was raised to have been exported iron ore clandestinely. On such accusation, the then S.D.O., Sadar, Chaibasa lodged a first information report, which was registered as Gua (Bada Jamda) P.S. Case No. 28 of 2010, under Sections 467, 468, 471, 420, 120 B of the Indian Penal Code and also under Section 20 of the MMDR Act. The matter was taken up for investigation by the District Police. Upon completion of the investigation, charge sheet was submitted by the District Police on 19/08/2010, against some of the accused persons namely, Sanjay Kumr Dhada, Shyam Kishore Prasad, Ravi Shankar Singh and Devendra Nath Sahu and against rest of the accused persons including the petitioners investigation was kept open. Before the charge sheet was submitted, the Central Government, with the consent of the State Government, issued a Notification on 09/08/2010, under Sections 6 and 5 of the Delhi Police Establisment Act for investigation of the same case, registered as Gua (Bada Jamda) P.S. Case No. 28 of 2010, against the accused persons including the petitioners. On issuance of such Notification, the CBI instituted a fresh case as R.C. Case No. 07(S)/2010 -AHD -R on 28/09/2010, under Sections 120B, 420, 467, 468, 471 of the Indian Penal Code and also under Section 21 of the MMDR Act. By that time, as has been stated above, the charge sheet had already been submitted by the District Police against the other accused persons, upon which cognizance of the offence was taken by the Court vide its order dated 20/08/2010. It is worthwhile to state herein that some of the persons, against whom, the charge sheet had been submitted, had moved to this Court for quashing of the first information report vide Cr.M.P. No. 1306 of 2010, which was allowed by this Court. The petitioner M/s Apical Exim Pvt. Limited had also challenged the first information report of the said Gua (Bada Jamda) P.S. Case No. 28 of 2010 vide Cr.M.P. No. 1297 of 2010, in which interim order was passed whereby further proceedings of the case had been stayed vide order dated 04/11/2010. Since, on the same allegation, two F.I.Rs have been lodged, one by the District Police and another by the CBI as R.C. Case No. 07(S)/2010 - AHD -R, these two applications have been filed for quashing of the first information report of the case, lodged by the CBI.
(3.) MR . Milan Mukherjee, learned senior counsel appearing for the petitioner M/s Apical Exim Pvt. Ltd., submits that upon a police case being registered against the petitioner and others, the police took it for investigation. After investigation, charge sheet was submitted on 19/08/2010 against other accused persons and not against the petitioners. Thereupon, cognizance of the offence was taken by the Court vide its order dated 20/08/2010. While submitting charge sheet against the other accused persons, it was recorded in the charge sheet itself that the investigation has been kept open so far other accused persons are concerned. Since, further proceeding of the case has been stayed by this Court, the police perhaps did not proceed for further investigation so far this petitioner is concerned. Meanwhile, CBI, on the basis of the Notification issued by the State Government and the Central Government, re -registered the case not against all the accused persons but only against this petitioner on the premise that the charge sheet had never been submitted against this petitioner. That cannot be allowed to be stand for simple reason that for the same allegation, two FIRs cannot be registered, though CBI may have power to go for further investigation but this is not the case herein, which is evident from the statement made in the counter affidavit filed on behalf of the CBI stating therein that the matter has never been taken for further investigation, rather it has been taken as a fresh case. Further, it was submitted that there has been decision of the Hon'ble Supreme Court that if upon lodging a case, it gets transpired that the said case does have element of conspiracy, there would be no illegality in registering a case of conspiracy but the instant case does not have any element of conspiracy as the CBI has lodged the case only against the petitioner on the premise that the petitioner had not been charge sheeted by the police and even after investigation, charge sheet has been submitted by the CBI only against the petitioner and in that event it can never be a case of conspiracy, much less of larger conspiracy. Therefore, not only the FIR but also the charge sheet submitted, are fit to be quashed in view of the decisions rendered in a case of "T.T.Antony -versus - State of Kerala & Others", [(2001) 6 SCC 181]" as well as "Babubahai -versus - State of Gujrat and Other", [(2010) 12 SCC 254]".;