Sheema Ali Khan, J.
1. This application has been filed for quashing the entire criminal proceeding arising out of Begusarai Town P.S. case No. 274 of 2000 dated 16.9.2000 registered under Sections 406/490/467/468/471/34 of the Indian Penal Code.
2. Before giving the facts of the case it may be mentioned that petitioner filed Cr. Misc. No. 32733 of 2001 which was dismissed for non-prosecution on 24.5.2002. The petitioner has filed a fresh application for quashing on 14.10.2003 vide Cr. Misc. No. 28734 of 2003. This application was also dismissed for non-prosecution by order of this Court dated 6.5.2003. The petitioner filed a restoration application vide Cr. Misc. No. 18504 of 2004 which was restored on 12.7.2004. Accordingly, this matter is now being finally disposed of.
3. The petitioner is an advocate of the High Court and he is seeking for quashing of the aforesaid criminal proceeding on the ground that after investigation by the Central Bureau of Investigation for the said offence final form was submitted and he was not sent up for trial in R.C. case No. 36(S)/1996. The contentions raised by Mr. Sunil Kumar Singh, learned Counsel appearing for the petitioner are two folds.
3.1. Firstly, learned Counsel submitted that the petitioner would be subjected to double jeopardy and secondly, the lodging of the First Information Report (by Fudan Yadav) is violative of the mandate of law as settled by the Supreme Court in the case of T.T. Antony v. State of Kerala and Ors. reported in : 2001CriLJ3329 .
4. In order to meet the submissions made by the learned Counsel for the petitioner it is necessary to give the brief facts of both the cases.
5. Fudan Yadav, who is informant of Begusarai P.S. case No. 274 of 2004 dated 16.9.2000 lodged First Information Report in which he has stated that he was in custody in the Mandal Jail at Begusarai in Sessions Trial No. 375 of 1996 for about 7 1/2 years. It is alleged by him that one Kapil Deo Mahto 4 to 5 years prior to lodging of this case would come to the jail and take money for the purpose of obtaining bail for those persons who were lodged in the jail. Kapildeo also came in contact with Fudan Yadav and asked him for Rs. 5,000/- and assured him that he would obtain bail for him. After about a month Kapildeo informed Fudan Yadav that he has been granted bail. When Fudan Yadav arranged for his tailors and appeared in the court below, he came to know that the bail order was a forged one and he also came to know that Kapildeo Mahto would take money from the persons in jail and file a bail application through Kashinath Choudhary and Ajay Thakur, both of whom were practising in the High court as Advocates. On these facts the First Information Report was registered. Three persons were made accused in this case namely Kapil Deo Mahto, Kashi Nath Choudhary and Ajay Kumar Thakur.
6. Before filing of the aforesaid First Information Report, earlier an First Information Report was lodged by Central Bureau of Investigation. On 26.7.1997 in R.C. case No. 36(5) of 1997, a Bench of the High Court, had directed the Central Bureau of Investigation to investigate the matter with respect to the forged orders which were obtained from the High Court. Accordingly, a First Information Report was lodged by the Central Bureau of Investigation under the orders of this Court in which several advocates as well as Fudan Yadav, Kapil Prasad Singh @ Kapildeo Singh and this petitioner were made accused. The orders of this Court were passed with respect to Cr. Misc. No. 8512 of 1995, Cr. Misc. No. 8519 of 1995 and Cr. Misc. No. 9024 of 1995. All the cases were filed for granting of bail to Fudan Yadav.
7. In view of the contentions of the petitioner the records of the case diary of R.C. case No. 36(S)/1997 were called for by the Court hearing this application and the diary has been submitted to this Court and, as such. I have gone through the diary of the case and the following facts have emerged after reading the diary.
7.1. One Fudan Yadav filed three bail applications in this High Court. Mr. A.K. Thakur got Cr. Misc. No. 5440 of 1994 filed through Sri Mukesh Kumar, advocate, Patna High Court and Cr. Misc. No. 12201 of 1994 was filed through Sushil Kumar, Advocate, Patna High Court. Cr. Misc. No. 5440 of 1994 was a regular bail application and Cr. Misc. No. 12201 of 1994 was filed for granting provisional bail to Fudan Yadav on the ground of illness of his father. Both the matters were moved by Sri Ajay Kumar Thakur and were heard together by a Bench of this Court. The bail applications were rejected by this Court. In the meantime. Ajay Kumar Thakur came to learn that Kapila @ Kapildeo Prasad Singh was approaching clients using the name of Ajay Kumar Thakur to get the briefs and then he would bring the files and get them filed through some other advocates, Ajay Kumar Thakur on learning this fact broke up all relations with Kapila and returned all the files to Kapildeo Yadav including the files of Fudan Yadav.
8. On investigation by the Central Bureau of Investigation, it has transpired that Kapila again contacted Fudan Yadav and promised to obtain bail for him. Fudan Yadav had specifically told Kapila not to get the bail filed through Ajay Kumar Thakur. Subsequently a bail application was filed which was Cr. Misc. No. 9024 of 1994 through Sri Kashi Nath Choudhary, advocate, (petitioner). The affidavit was sworn by one Sita Ram Singh. In this bail application suppression was made of certain facts, and on the basis of the suppression of the relevant fact, bail was granted on 11.7.1995 by this Court to Fudan Yadav. After the order of bail was sent to the court below, it was detected that the bail order is forged and the order has been obtained by suppressing important aspects of the case. The matter was reported back to the High Court and this Court directed for investigation by the Central Bureau of Investigation and accordingly, a case was instituted on 26.7.1997. It may be mentioned here that Fudan Yadav had been examined by the Central Bureau of Investigation on 15.9.1997. In his statement before the Central Bureau of Investigation, he has specifically stated:
PUCHNE PAR AAGE BEYAN KARTA HUN KI JIS ORDER (HIGH COURT, PATNA) KE TAHAT MUJHE BAIL HUA THA USME KAUN VAKIL KHADA THA YEH MAI NAHIN BATA SAKTA HUN KEONKI KAPILA KO TISRI BAR 95 MEN JAB BAIL KE LIYA BAAT KIYA THA TO USNE YEHI KAHA THA KI ISS BAR AJAY THAKUR NAHIN BALKI KOI ANYA SENIOR VAKIL SE MERA CASE HIGH COURT MEN LADWAYEGA PARANTU KAPILA NE KABHI BHI VAKIL KA ZIKRA NAHIN KIYA. USKE BAD MERI MULAKAT KAPILA SE SAN 1997 MEN HUAI JAB VAH BEGUSARAI POLICE DWARA GIRAFTAR KAR BEGUSARAI JAIL LAYA GAYA. US BAR BHI MAINE USAE VAKIL KE BARE MEN PUCHHA PARANTU VAH BATANE SE SAF INKAR KAR DIYA. AAJ TAK MUJHA PATA NAHIN KI JIS AADESH KE TAHAT MUJHE BAIL HUA THA USME MERE TARAF SE KAUN VAKIL LADA THA....
9. Chargesheet was submitted on 21.5.2001 in which four persons, namely, Fudan Yadav, Kapil Pd. Singh @ Kapila, Sudhanshu Kumar and Ayodhya Prasad have been made accused and have been sent up for trial. The trial of the case is in progress.
10. On the other hand on the basis of the fardbevan of Fudan Yadav a case was registered which is numbered as Begusarai Town P.S. case No. 274 of 2000 dated 16.9.2000. While investigating the Begusarai Town P.S. case No. 274 of 2000 the bail application of Cr. Misc. No. 9024 of 1995 has been reproduced in the case diary. The bail application has been filed through this petitioner and the affidavit has been signed by Sitaram Singh. In the bail application certain facts were suppressed and wrongly stated. They are being reproduced below:
Firstly, it was said that 'the petitioner has not moved before this learned Hon'ble Court for the grant of regular bail in respect of the contents of the present application or against the impugned order.'
11. And it further stated in the bail application:
4. ...It is further stated in the First Information Report that thereupon Sattan Yadav shot my father which hit him on the back side of my father and Asraf Yadav shot my father which hit him and thereupon my father fall down and dead.
12. Both these facts have been falsely stated and which led to the grant of bail by this Hon'ble Court. The order dated 26.9.2001 indicates that chargesheet was submitted against Kapildeo Mahto and Kashi Nath Choudhary under Section 406, 420, 467, 468, 471/34 of the Indian Penal Code only. The Investigating Officer did not find material against Ajay Kumar Thakur, Advocate of this Court, and accordingly the court took cognizance of the offences under Sections 406, 420, 467, 468, 471/34 of the Indian Penal Code and the case was transferred to the Judicial Magistrate, Ist Class.
13. The first question raised on behalf of the petitioner is that the order of cognizance and entire criminal case should be quashed as far as it concerns the petitioner, as it is hit by Article 20(2) of the Constitution of India. Article 20(2) reads as follows:
20(2) 'No person shall be prosecuted and punished for the same offence more than once.
14. This clause guarantees that no person no person shall be prosecuted and punished for the same offence. 'And' is used here in the ordinary conjunctive sense. Hence, Article 20(2) bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously.
15. The application of Article 20(2) has been settled by several disputes which have been summarised in the commentary of shorter Constitution of India by Durga Das Basu which are as follows:
Conditions for the application of Clause (2).-1. The conditions for the application of the clause are -
(a) There must have been previous proceeding before a Court of law or a judicial tribunal, of competent jurisdiction.
(b) The person must have been 'prosecuted' in the previous proceeding.
(c) The conviction (or acquittal) in the previous proceeding must be in force at the time of the second trial.
(d) The 'offence' which is the subject-matter of the second proceeding must be the same as that of the first proceeding, for which he was 'prosecuted and punished'.
(e) The 'offence' must be an offence as defined in Section 3(38) of the General Clauses Act, that is to say, 'an act or omission made punishable by any law for the time being in force'. It follows that the prosecution must be valid and not null and void or abortive.
(f) The subsequent proceeding must be a fresh proceeding where he is, for the second time, sought to be 'prosecuted and punished' for the same offence. Hence, the clause has no application where the subsequent proceeding is a mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal, or against conviction. Nor does it bar a retrial, on appeal, with a direction to reframe the charges, provided the retrial is confined to the same offence or offences for which he had been tried at the original trial.
16. In this case, however, the condition for application of Article 20(2) are not attracted and therefore the contention of the learned Counsel that the First Information Report of Begusarai Town P.S. case No. 274 of 2004 dated 16.9.2000 is hit by Article 20(2) of the Constitution of India has to be rejected.
17. Learned Counsel for the petitioner has not contended and relied on the law laid down in the case of T.T. Anthony v. State of Kerala. It would be relevant, therefore, to refer to the facts of the case and the law laid down by the Apex Court. The facts are that Mr. M.V. Raghavan who was once a comrade-in-arms in CPI(M) and was its MLA for over 15 years broke away from that party and formed a new party - the Communist Marxist Party (CMP). He was elected as an MLA on the ticket of CPM from Azheekkode Constituency, Kannur District. This gave rise to retribution in the rank and file of CPI(M) workers and particularly the youth wing which took upon itself to prevent his visits to Kannur District. It appears that much against the advice of the district administration, the Minister finalised his visit for inauguration of the 'evening branch of Cooperative Urban Bank' in Alakkandy Complex at Kuthuparamba-Tellicherry Road(Kannur District). His visit led to an unfortunate incident in which five persons died and six persons were injured in the police firing purportedly resorted to for the protection of the Minister and public and private property. The police opened fire in two places-(1) in the proximity of the Town Hall on the orders of the Executive Magistrate and the Deputy Superintendent of Police and (ii) in the vicinity of Police Station Kuthuparamba on the orders of the Superintendent of Police. Two Crime Cases were registered. Crime Case No. 353 of 1994 registered by the Assistant Superintendent of Police of Thalassery for the incident which took place near the Town Hall, and Crime Case No. 354 of 1994 registered by the Superintendent of Police that took place in the vicinity of the Police Station. There was a great public hue and cry and the Kerala Government appointed the District and Sessions Judge, Thalassery as single member Commission of injury under Section 3(1) of the Commissions of Inquiry Act, 1952-
(a) To enquire into the circumstances of firing.
(b) Whether the said firing by police was justified.
(c) The person/persons responsible for the firing and any other matters which are incidental to and arising out of the above.
18. The Commission submitted its report which in essence held that the attitude of Mr. M.V. Raghavan former Minister of Cooperation and Ports was uncompromising as he had prior information regarding possible consequences of his visit to Kuthuparamba and the failure on the part of Shri T.T. Antony, Deputy Collector and Executive Magistrate to evaluate and take stock of the situation ended in the police firing resulting in the death of five persons and injuries to many others. The Commission held that the firing at Kuthuparamba on 25.11.1994 was not justified and also held that Sri M.V. Raghavan, former Minister, Sri Abdul Hakkim Bathery, Dy. Superintendent of Police and Sri T.T. Antony, former Dy. Collector, Kannur, were responsible for the police firing.
19. The report of the Commission was accepted and the Inspector General of Police forwarded the report to the Dy. Inspector General of Police, North Zone for urgent and personal investigation. Dy Superintendent of Police, Thalasery, registered Crime Case No. 268 of 1997 of Kuthuparamba Police Station under Section 302 of the Indian Penal Code in which Shri M.V. Raghavan, Sri A.H. Bathery and Shri T.T. Antony were made accused along with 19 other police officials.
20. Three writ petitions were filed in the High Court of Kerala praying to quash the First Information Report in Crime Case No. 268 of 1997 and alternatively praying for a direction for investigation into the crime by the C.B.I. These three writ petitions were filed by T.T. Antony, R.A. Chandrasekhar and 14 constables, who are accused in the case.
21. Learned single Judge on hearing the writ applications held that the case should be reinvestigated by the C.B.I. Against the judgment of the learned single Judge six writ appeals were filed- three by the writ petitioners aforesaid and three by the State of Kerala.
22. The Division Bench of the Kerala High Court confirmed the judgment of the learned single Judge holding that the First Information Report in the Crime Case No. 268 of 1997 against the Assistant Superintendent of Police should be quashed. However, it directed that fresh investigation should be conducted and the same is to be headed by the three senior officials named in the judgment. Against the Division Bench decision aggrieved party/parties went up in appeal before the Supreme Court. It would be relevant to quote paragraph -14 of the judgment which puts forth the contention raised by the accused and the State in the appeal before the Supreme Court.
Para-14- 'At the rehearing of the appeals, the learned Counsel for the parties addressed arguments on the question of the legality of the second F.I.R. registered as Crime No. 268 of 1997 and the investigation that followed it in respect of the cognizable offence mentioned therein after about three years of the occurrence when in that regard two FIRs pertaining to two different places were already filed and registered as Crimes Nos. 353 and 354 of 1994 on the date of the occurrence-25.11.1994 and the investigations in those cases were pending. The learned Counsel for the accused have argued that registration of fresh information in respect of the very same incident as an FIR under Section 154 Cr.P.C. is not valid, therefore all the steps taken pursuant thereto including investigation are illegal and liable to be quashed. The learned Solicitor-General countered them stating that no illegality can be attached to the second FIR or the investigation made thereunder as nothing prevented the investigating agency from making further investigation on the basis of the first FIR in view of the subsequent information received and forwarding a further report, at any rate, the objection is merely one of form and not of substance and it makes no difference so far as the final report is concerned.'
22.1. Answering the contention raised by the parties before the Supreme Court, the Apex Court held that:
The scheme of Cr.P.C. is that an officer-in-charge of the police station has to commence investigation as provided under Sections 156 or 157 Cr.P.C. on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 Cr.P.C. as the case may be, and forward his report to the Magistrate concerned under Section 173(2) Cr.P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh F.I.R.; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of Sub-section (8) of Section 173 Cr.P.C.
22.2. The Apex Court, thus held that 'The earliest/first information given with respect to the Commission of cognizable offence satisfies the requirement of Section 154 Cr.P.C. Thus, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.'
22.3. After elaborate discussion on the case laws referred to by the parties the Apex Court held that:
For the aforementioned reasons, the registration of the second FIR under section under Section 154 Cr.P.C. on the basis of the letter of the Director General of Police as Crime No. 268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigation agency for seeking leave of the Court in Crimes Nos. 353 and 354 of 1994 for making further investigation and filing a further report or reports under Section 173(8) Cr.P.C. before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268 of 1997 or Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgement of the High Court shall stand set aside.
23. It may be again stated here that in the present case the first FIR was instituted on the orders of the High Court was instituted on 26.7.1997 in R.C. case No. 36(S) 1997. In this case the petitioner has not been sent up for trial, the second case was instituted by Fudan Yadav on 16.9.2000 which has been investigated by the police and in this case the petitioner has been chargesheeted and made accused.
24. On the basis of reasoning and decisions in T.T. Antony's case it would now be apparent that the investigation of the second FIR i.e. Begusarai P.S case No. 274/2004 dated 16.9.2000 is unwarranted as the case was instituted for the same incident and for the same facts. However, this does not preclude the investigating authority/agency from making further investigation or taking action against any of the persons who are found to be involved in the occurrence during the investigation or trial of the case.
25. Applying the law laid down in the case of T.T. Antony v. State of Kerala, I quash the order of cognizance dated 16.9.2000 taken in Begusarai Town P.S. case No. 274 of 2004 only as far as it concerns the petitioner, but subject to the observations made above.