SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT

In a very significant observation, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Mr Monishankar Hazra and another v. State of Haryana and others and a connected petition in CRM-M-6692-2022(O&M) and CRM-M-6698-2022(O&M) have observed that in case an FIR with respect to an incident has already been registered, then a second FIR with respect to the same incident cannot be registered and in case, the same is registered then the High Court is well within its power to quash the second FIR. It must be noted that the single Judge Bench of Justice Vikas Bahl observed thus as it quashed an FIR against the Optum Global Solutions (India) Private Limited and its officials over cheating and forgery charges. The Court also observed that if an FIR does not disclose the essential requirements of the penal provision or does not disclose the essential requirements of the penal provision or does not disclose the commission of a cognizable offence, the same can be quashed at the initial stage.

To start with, this notable judgment authored by a single Judge bench comprising of Justice Vikas Bahl of the Punjab and Haryana High Court first and foremost points out in para 1 and here we shall state only key point that, “This order will dispose of the two petitions filed under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) to set aside/quash the order dated 15.12.2021 passed by the Chief Judicial Magistrate, Panchkula, in case bearing no. COMI/63/2021 titled as “Sharad Kothari vs. United Health Group Information Services &Ors.”, registered on 31.08.2021 and the consequential proceedings arising therefrom, including FIR bearing no.508 dated 23.12.2021 registered under Sections 120-B, 406, 409, 420, 465, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as “IPC”) at Police Station Sector 5, Panchkula. The first petition, i.e. CRM-M-6692-2022 has been filed by Monishankar Hazra and Sameer Bansal and the second petition, i.e. CRMM-6698-2022 has been filed by seven petitioners namely Optum Global Solutions (India) Private Limited through its authorised representative Mr.Prashant Sinha, Anurag Khosla, Tim Trujillo, Rajat Bansal, Gayatri Varma, John Santelli and Partha Sarathi Mishra. Since the impugned order in both the cases is the same and the issues involved and questions of law are also common, thus, both the cases are being taken up together and with the consent of all the parties, CRM-M-6692-2022 is taken up as the lead case and facts have been taken from the said petition.”

BACKGROUND/ FACTS OF THE CASE

While elaborating on background/facts of case, the Bench envisages in para 2 that, “Respondent no.2 had filed a complaint dated 27.08.2021 under Section 156(3) of the Cr.P.C. (Annexure P-28 page 539) against ten accused persons, including 9 petitioners in both the petitions, collectively. A prayer was made in the said complaint for issuance of directions as envisaged under Section 156(3) of the Cr.P.C. to the concerned Police Station for registration of an FIR under Sections 406, 409, 420, 465, 467, 468, 471 and 120-B IPC, on the allegations that the accused persons committed illegalities in order to procure a tender, floated by Haryana State Health Resource Centre (hereinafter referred to as “HSHRC”) for implementation of Hospital Information System (HIS) in favour of M/s United Health Group Information Services Pvt. Ltd.(hereinafter referred to as “UHGIS”). It had been alleged in the complaint that the complainant / respondent no.2 was an ex-employee of accused no.1-company and was appointed as DirectorBusiness Development vide appointment letter dated 09.12.2013 in accused no.1-company, which came to be known as M/s Optum Global Solutions India Limited after passing of the amalgamation order by the Hon’ble National Company Law Tribunal, Hyderabad on 20.03.2017. It has further been alleged that in the month of December, 2013, the Government of Haryana through HSHRC floated a tender/Request for Proposal (hereinafter referred to as (“RFP”) for implementation of HIS. As per the said tender, the bidders were required to be highly specialized in the field of ‘System Integration’ with minimum qualifications / requirements as prescribed under para 4.3 of Volume II of tender /RFP. Specific reference had been made to serial nos. 7 and 8 of said para 4.3. It has also been alleged that the award of contract was dependent upon the fulfillment of the qualifications as prescribed and in pursuance of the said tender, five companies submitted their cost bids to the HSHRC. The companies who had given their bid are as follows:-

S. No. Company name

1 IL & FS Technologies Limited

2 Hewlett-Packard India Sale Private Limited

3 Accenture Services Pvt Ltd.

4 United Health Group Information Systems Pvt. Ltd. (Accused no.1)

5 EY/NDSL

It had further been alleged that accused no.1-UHGIS was the 4th lowest bidder and by fabricating documents, managed to procure the tender. The same was procured by all the accused persons in connivance with each other and in collusion with some officials from HSHRC and accused no.1 had submitted its bid very cleverly, without the extracts of the audited balance sheet and profit and loss statement, as was required by HSHRC and without furnishing any certificate from its statutory auditor certifying that the company had a turnover of INR 100 crore from system integration services etc. and for reasons best known to the HSHRC, it still accepted the said tender. It has further been alleged that accused no.1 was incompetent to participate in the tender inasmuch as, the services which were required to be carried out, were never done by accused no.1 and even the same did not form a part of the Memorandum of Association of accused no.1-company and the said Memorandum of Association was amended vide resolution dated 29.04.2014, incorporating clauses 1B and 1C in the Objects Clause to include activities / services which were required to be carried out by the bidders. It had further been submitted that the tender bid was submitted on 13.03.2014 and the amendment in the Memorandum of Association was carried out subsequent to the same, i.e., on 29.04.2014. It had also been alleged that in order to fulfill the condition listed at serial no.8 of para 4.3 Volume II (supra) of the tender, which required the bidder to have experience demonstrated in networks of hospitals and not one / single hospital, the accused persons in collusion with each other, manipulated this requirement by preparing false documents, including two experience certificates, which were stated to be clearly fake and forged document as they were issued by M/s Optum Inc. USA (hereinafter referred to as “Optum US”) and the said experience certificate showed that UHGIS (accused no.1- company) had rendered service to M/s Optum Inc, USA in the year 2008 and 2009 whereas, Optum US itself came into existence on 17.09.2009.It has further been alleged that accused no.1 had not submitted any document to show that it had fulfilled the requirement of the HSHRC to the effect that it should have Rs.100 crore turnover for each year, i.e. 2008-09, 2009-10, 2010-11 and that respondent no.2 came to know about the entire scam/incident on 01.10.2015 when accused no.2-Sandeep Khurana in a drunken state disclosed to him the whole episode/incident in a restaurant. It has further been alleged that thereafter, respondent no.2 got an FIR no.419/2017 dated 18.08.2017 under Sections 66/66C of the IT Act lodged at Police Station Prashant Vihar, Rohini, New Delhi, regarding invasion of privacy of respondent no.2 and a complaint was also filed before the Director General of Police, Haryana which was marked to the Economic Offences Wing for enquiry/ investigation regarding which, a report was made by the ASI Prakash Chand from which, it was clear that the accused persons have repeatedly tried to thwart the investigation by not appearing on many occasions. It has also been alleged that the cause of action arose to the complainant on 13.03.2014 firstly, when the forged documents were supplied by the accused persons to the office of HSHRC Panchkula and then, again on 01.10.2015 and then, on 08.04.2016,as well as on 29.04.2016, cause of action continued as the complainant was made to resign from the accused-company. It had been stated that it is the Court in Panchkula which has the jurisdiction to entertain this matter and no such or similar petition except mentioned in the petition was filed or pending.”

To put things in perspective, the Bench then enunciates in para 3 that, “The Chief Judicial Magistrate, Panchkula, vide impugned order dated 15.12.2021 allowed the said application and directed the SHO, Sector 5 Panchkula to lodge the FIR. In the said order, the Chief Judicial Magistrate, Panchkula, had considered the interim report dated 22.07.2020 which was submitted by the Director General Health Services Haryana, Panchkula in which Sanjay Sethi, Assistant General Manager, HARTRON and Puneet Brar, Senior Consultant, HARTRON had made observations against the accused persons. Reliance was also placed upon the interim report of the Investigating Officer dated 01.09.2020. It was further observed that since respondent no.2 was also involved in bidding process on behalf of accused no.1 company, the Court was taking cognizance on the report filed by above said Sanjay Sethi and Puneet Brar. In pursuance of the same, above said FIR no.508 dated 23.12.2021 was registered and above said Sanjay Sethi and Puneet Brar were made as complainant. It is the above said order dated 15.12.2021, FIR dated 23.12.2021 and the subsequent proceedings arising therefrom which have been challenged by 9 accused persons by filing two separate petitions.”

CONCLUSION

Most remarkably, the Bench hastens to add in para 67 that, “That on the basis of above-said factors, this Court is of the opinion that the impugned order as well as the subsequent FIR arising therefrom, deserve to be quashed. Apart from the judgments which have been noticed hereinabove, the Hon’ble Supreme Court of India as well as various High Courts have repeatedly held that where the grounds, as are there in the present case, are made out then, the High Court can exercise its powers under Section 482 Cr.P.C to quash the proceedings as well as to set aside the impugned order. The Hon’ble Supreme Court of India in State of Haryana and others vs. Bhajan Lal and others (supra) has held as under:-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

In the above said case, the Hon’ble Supreme Court of India had enumerated categories of various cases, by way of illustrations, wherein power under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of any Court or to otherwise secure the ends of justice. It is held that the present case would fall within the said parameters moreso, category 1, 2, 3 and 7.”

Most significantly, the Bench minces no words to hold in para 68 that, “The Hon’ble Supreme Court in “T.T. Antony’s case (supra) has observed as under: –

“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) Criminal Procedure Code, 1973 It would clearly be beyond the purview of sections 154 and 156 Criminal Procedure Code, 1973 nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of a 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 underway 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 Criminal Procedure Code, 1973 or under Articles 226/227 of the Constitution.

xxx xxx xxx

The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Criminal Procedure Code as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open of the investigating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.”

A perusal of the above-reproduced judgment would show that it had been observed by the Hon’ble Supreme Court of India that in case, with respect to one incident an FIR already stands registered, then a second FIR with respect to the same incident cannot be registered and in case the same is registered then, the High Court while exercising its powers under Section 482 Cr.P.C, would be well within its rights to quash the second FIR. The same principle has been followed by the Hon’ble Supreme Court in the case of “Amitbhai Anil Chandra Shah’s case (supra). Thus, in a situation where a second FIR is registered with respect to the same incident on which an FIR has already been registered as in the present case, the petition for quashing of the second FIR should not be thrown out on the ground that the report under Section 173 CrPC has not been submitted.”

Relief:

Finally, the Bench then concludes by holding in para 71 that, “Keeping in view the eight grounds, as have been detailed in the preceding paragraphs and the facts and circumstances of the present case and the ratio of law laid down in the plethora of judgments referred to hereinabove, both the petitions i.e., CRM-M-6692/2022 and CRM-M 6698/ 2022 are allowed and the impugned order dated 15.12.2021 is set aside and FIR no.508/2021 dated 23.12.2021 registered under Sections 120B, 406, 409, 420, 465, 467, 468 and 471 of the IPC at Police Station Sector 5, Panchkula and all the subsequent proceedings arising therefrom, are quashed.

It is, however, clarified that the setting aside of the impugned order and quashing of the FIR and the subsequent proceedings as well as the observations made in the present case would not affect the proceedings / complaint which is pending before the Lokayukta, Haryana and also the proceedings pending before the Rohini Courts in New Delhi arising out of the FIR no.419 dated 18.08.2017 registered at Police Station Prashant Vihar, Delhi which had been registered in pursuance of the application dated 07.06.2017 filed under Section 156(3) Cr.P.C. by Respondent no.2 in the Court of Chief Metropolitan Magistrate, Rohini Courts, New Delhi.”

In conclusion, the Punjab and Haryana High Court has made it indisputably clear that the second FIR can be quashed if first FIR in respect to same incident has already been registered. The relevant case laws have already been discussed hereinabove. It merits no reiteration that Justice Vikas Bahl has painstakingly dwelt on a number of relevant cases and we have discussed here only the most important ones to make it abundantly clear that when can the second FIR be quashed.

The post SECOND FIR CAN BE QUASHED IF FIRST FIR IN RESPECT TO SAME INCIDENT HAS ALREADY BEEN REGISTERED: PUNJAB & HARYANA HIGH COURT appeared first on The Daily Guardian.

Recommended For You

About the Author: - -