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CASE NO.: Appeal (crl.)  1327-1328 of 2007

PETITIONER: Bank of Rajasthan

RESPONDENT: Keshav Bangur & Another

DATE OF JUDGMENT: 03/10/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS.   1327-1328                      OF 2007 (ARISING OUT OF S.L.P. (CRL.) NOS. 5566-5567 OF 2004) W I T H Crl. Appeal Nos 1329-1330 of 2007 arising out of SLP (Crl.) Nos.5568-5569  of 2004, Crl. Appeal Nos 1331-1332 of 2007 arising out of SLP (Crl.)  Nos.5572-73 of 2004, T.P. (C) Nos.236-243/2002, T.P. (Crl.) Nos.387- 388/2004 and T.P. (Crl.) No.82/2005 Crl. Appeal No 1333 of 2007 arising out of SLP (Crl.) No.634 of 2005,  Crl. Appeal No 1334 of 2007 arising out of SLP (Crl.) No.635 of 2005,  Crl. Appeal No 1335 of 2007 arising out of SLP (Crl.) No.781 of 2007,  T.P. (Crl.) No.104 of 2004

KAPADIA, J.

1.      Leave granted.

2.      Akhil Bhartiya Karamchari Sangh filed Writ Petition  No.2094 of 1999 in the Rajasthan High Court alleging that  Bangur Group ("Bangurs" for short) was responsible for  siphoning off funds of the Bank of Rajasthan ("BOR" for short).   As per the order dated 27.9.99, the CBI registered a  preliminary enquiry.  This was on 25.10.99.  CBI submitted  Interim Reports between 28.3.00 and 14.7.00.  On 11.12.00,  CBI submitted its Final Enquiry Report.  Vide order dated  27.4.01 the Single Judge directed BOR to file criminal  complaints.  Against the said order dated 27.4.01, BOR filed  special appeal before the Division Bench of Rajasthan High  Court saying that since CBI had enquired into the whole  matter it (i.e. CBI) should alone be directed to continue with  the investigation.  Vide Order dated 31.5.02, the Division  Bench directed CBI to continue with the investigation.   Pursuant to the said order dated 31.5.02 CBI registered  sixteen cases and filed charge sheets as per details given  below:    S. No. Case No. Name of  the branch Amount  involved in  Rs. Name  of the  Court

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where  the FIR  was  register ed Date of  filing  charge  sheet, if  any Name of  the Court  where the  charge  sheet was  filed Present status 1 RC 9/E/02-Kol CBI/EOW /Kol 3 crores Ld. 3rd  Spl.  Judge,  Kol. 03.06.04 Ld. 3rd  Spl.  Judge,  Kolkata. Cognizance has  since been taken  and further  progress is  pending awaiting  orders 2 RC 10/E/02/Kol . CBI/EOW /Kol. 15.105  crores Ld. 3rd  Spl.  Judge,  Kol. 25.11.04 Lrd. 3rd  Spl.  Judge,  Kolkata. Charge sheet  filed in the Court  but further  progress is  pending awaiting  orders. 3 RC11/E/02- Kol. CBI/EOW

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/Kol. 2 crores Lrd. 3rd  Spl.  Judge,  Kol. 12.10.04 Ld. 3rd  Spl.  Judge,  Kolkata Charge sheet  filed in the Court  but further  progress is  pending awaiting  orders. 4 RC 12/E/02- Kol CBI/EOW /Kol. 46.50 lacs. Lrd. 3rd  Spl.  Judge,  Kol. 02.04.04 Ld. 3rd  Spl.  Judge,  Kolkata. Cog. Has since  been taken, but  further trial is  pending awaiting  orders 5 RC13/E/02- Kol. CBI/EOW /Kol. 1,07,66,265/ - Ld. 3rd  Spl.  Judge,  Kolkata  --- Ld. 3rd  Spl.  Judge,  Kolkata Investigation  completed but  charge sheet not  accepted by the  Ld. 3rd Spl.  Judge, Kolkata  awaiting orders

6 RC14/E/02- Kol. CBI/EOW

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/Kol. 498.82  lacs. Ld. 3rd  Spl.  Judge,  Kol. 08.04.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance  taken by the  Court of the Ld.  3rd Spl. Judge,  Kolkata was  quashed by the  Hon’ble High  Court of Kolkata  and was further  investigated as  per the orders of  the Hon’ble  High Court.   Further  investigation has  been completed  but  supplementary  charge sheet is  ready to be filed  in the Ld. 3rd  Spl. Judge,  Kolkata 7 RC15/E/02- Kol. CBI/EOW /Kol. 102 lacs Ld. 3rd  Spl.  Judge,  Kol. 23.12.04 Ld. 3rd  Spl.  Judge,  Kolkata Charge sheet  filed in the court,  trial pending  awaiting orders. 8 RC04/E/03- Kol. CBI/EOW /Kol. 1,65,89,595/- Ld. 3rd  Spl.  Judge,  Kol. ---

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Ld. 3rd  Spl.  Judge,  Kolkata Investigation has  since been  completed and  charge sheet is  ready to be filed. 9 RC06/E/02- Mum. CBI/EOW /Mumbai 2 crores Ld. 3rd  Spl.  Judge,  Kol. 30.12.03 Ld. Spl.  Judge for  CBI  cases,  Greater  Mumbai Cognizance has  since been taken  but trial is  pending awaiting  order. 10 RC07/E/02- Mum. CBI/EOW /Mumbai 2 crores  Ld. 3rd  Spl.  Judge,  Kol. 30.12.03 Ld.Spl.  Judge for  CBI  cases,  Greater  Mumbai Cognizance has  since been taken,  but trial is  pending awaiting  order. 11 RC/SIA/02/ E/003 CBI/SIU- X/BS&FC /N.Delhi 9.5 crores  Ld. 3rd  Spl.  Judge,  Kol. CS

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forwarded  on  27.12.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders. 12 RC/SIA/02/ E/004 CBI/SIU- X/BS&FC /N. Delhi 5 crores Ld. 3rd  Spl.  Judge,  Kol. CS  forwarded  on  27.12.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders.

13 RC/SIA/02/ E/005 CBI/SIU- X/BS&FC /N. Delhi 5 crores Ld. 3rd  Spl.  Judge,  Kol. 30.06.04 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders. 14 RC/BDI/02/ E/0003 CBI/BS& FC/N.  Delhi 5 crores Ld. 3rd  Spl.

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Judge,  Kol. CS  forwarded  on  28.12.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders. 15 RC/BDI/02/ E/0004 CBI/BS& FC/N.  Delhi 5 crores Ld. 3rd  Spl.  Judge,  Kol. CS  forwarded  on  28.12.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders. 16 RC/BDI/02/ E/0005 CBI/BS& FC/N.  Delhi 5 crores Ld. 3rd  Spl.  Judge,  Kol. CS  forwarded  on  28.12.03 Ld. 3rd  Spl.  Judge,  Kolkata Cognizance has  not yet been  taken awaiting  orders.

3.      In the meantime, one Navneet Baheti buys 500 shares of  BOR during the period between 13.7.01 and 20.7.01.

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4.      On complaint being filed by Navneet Baheti under  Section 156(3) Cr.P.C., the Chief Judicial Magistrate, Alipore,  vide order dated 23.7.01, directed the officer-in-charge of  Alipore Police Station to register and investigate under Section  156(3) Cr.P.C. after treating his complaint as FIR.   Accordingly, on 25.7.01 Alipore Police Station registered FIR  No.138 of 2001 against Bangurs under Section 120B, 406,  409, 420, 467, 468, 471 and 477A IPC.  On 24.9.2001 BOR  filed Writ Petition No.14491/2001 in Calcutta High Court  challenging the registration of FIR No.138 of 2001.  On  25.9.01 Navneet Baheti also filed Writ Petition No.14538/2001  in Calcutta High Court praying for expedition of the  investigations by the State Police.  In the meantime on 27.9.01  Bangurs filed an affidavit before the Division Bench of  Rajasthan High Court in Special Appeal No.333 of 2001 in  which they contended that since Alipore Police station had  registered FIR No.138 of 2001 on 25.7.01, Information Report  registered by CBI on 31.5.02 did not constitute an FIR in law.   They accordingly prayed for the discontinuance of the process  in the hands of CBI.

5.      By order dated 3.10.01 in W.P. No.14491 of 2001 the  Calcutta High Court directed the Alipore Police Station to  proceed with the investigations in FIR No.138/01 in  accordance with law.   

6.      On 28.11.01 Bangurs filed an application before the  Rajasthan High Court in Writ Petition No. 2094/99 in which  they contended that in view of FIR No.138/01 filed in Alipore  Police Station, Calcutta, the directions passed by the single  judge for investigations by CBI be set aside.  That, the said  Writ Petition No.2094/99 filed by the Akhil Bhartiya  Karamchari Sangh be dismissed accordingly.   

7.      On 31.5.02, the Division Bench of Rajasthan High Court  passed the following order in Special Appeal No.333 of 2001  which reads as follow: "In our view, the directions issued by the learned  Single Judge for the bank to prosecute the criminal  proceedings by filing a private complaint in the  criminal court is neither just nor fair nor proper and  is not in accordance with the law.  Considering the  facts revealed in the report submitted by the CBI.   Accordingly, we quash the directions given by the  learned Single Judge in its order 27.4.2001  directing the bank to file a criminal complaint in  regard to the facts revealed in the CBI report and  instead thereof direct the CBI to continue, with the  enquiry/investigation in accordance with the law  and proceed further to take up the matter before the  appropriate criminal court by taking appropriate  steps."  

8.      On 12.7.02 a Closure Report was filed in Final Form in  FIR 138/01 by Alipore Police Station stating that since  investigation has been taken by CBI and since documents  have been transferred to CBI, the said FIR 138/01 be ordered  to be closed.  That prayer was ultimately accepted by Sub  Divisional Judicial Magistrate, Alipore, Calcutta.  However, it  may be noted that the said closure was not on merits.

9.      On 27.11.03, Keshav Bangur filed Criminal Revision  Application Nos.2545 and 2852 of 2003 under Section 482  Cr.P.C. for quashing the sixteen FIRs by CBI on the ground

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that they were second FIRs, the first being FIR No.138/2001  arising from the complaints filed by Navneet Baheti.  Vide   interim order dated 13.9.04, the Calclutta High Court directed  CBI to proceed with the investigations in all sixteen cases,  however, it directed that cognizance should not be taken  without prior permission from High Court.  Similarly, by  interim order 1.10.04 the Calcutta High Court stayed further  proceedings pending before the Special Judge, CBI, Mumbai.   

10.     The above interim orders were challenged by BOR before  this Court vide Special Leave Petitions.  This Court vide order  dated 3.12.04 stayed the interim orders of the Calcutta High  Court.

11.     By impugned judgment dated 23.12.04, the above two  criminal revisions filed by Keshav Bangur came up for hearing  when the Calcutta High Court vacated all interim orders and  directed CBI to take up investigation of Alipore PS Case  No.138/01.  The High Court further observed that in course of  investigation of Alipore PS Case No.138/01, it would be open  to the CBI to take into consideration the said sixteen FIRs  also.  Thus, the investigation of FIR No.138/01 and the sixteen  FIRs was ordered to be done by one common agency viz. CBI.

12.     Aggrieved by the decision of the Calcutta High Court  dated 23.12.04, BOR came to this Court vide two Special  Leave Petitions.  By order dated 8.3.07, this Court directed  CBI to proceed with the investigation into FIR No.138/01 and  submit its report in a sealed cover within six weeks which has  been done.

13.     In this batch of cases the controversy raised is as follows: "Whether registration of FIR No.138/01 by Calcutta  Police constituted the first FIR and, if so, whether  the process in the hands of CBI initiated at the  instance of the Rajasthan High Court stood  discontinued when the Calcutta Police registered  the first FIR No.138/01."  

14.     The main contention raised in Crl. Appeal No\005\005. of  2007 arising out of SLP(Crl.) No.781/2007 - filed by Keshav  Bangur is that the investigative power of the police in a  cognizable offence originates from lodging of an FIR under  Section 154 of Cr.P.C. and when an FIR is already pending  registration of a series of FIRs in respect of the same  cognizable offence would be a gross abuse of the process of the  court.

15.     The above question has now become academic for the  following reasons.  Firstly, in our order dated 8.3.07 we  directed CBI to proceed with investigation into FIR No.138 of  2001 filed in P.S. Alipore, Calcutta.  Under the said order we  also directed CBI to submit their report under a sealed cover  within six weeks.  That Report has been placed before us.  We  have gone through that Report.  We do not wish to discuss the  contents of the Report at this stage.  By the impugned  judgment, the Calcutta High Court has directed CBI to take up  the investigation of Alipore PS Case No.138/01 and has  further directed that in the course of such investigation of the  said Case No.138/01 it would be open to CBI to take into  consideration the aforestated sixteen FIRs, the period during  which the alleged offence were committed and thereafter to  decide the course of action to be taken in accordance with law.   The learned Sub Divisional Judicial Magistrate was also   directed to transmit the record of Alipore PS Case No.138/01

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to the Third Special Judge, CBI, Calcutta.  We agree with the  said direction.  The said direction of the Calcutta High Court  contained in the impugned judgment read with our order  dated 8.3.07 indicates that investigation into FIR No.138/01  as well as into sixteen FIRs have been entrusted to one single  agency, namely, CBI.  In the circumstances, the question of  First FIR has become academic.  That question no more  survives.  Consequently, two civil revision applications filed by  Keshav Bangur in the High Court bearing Nos.2545 and 2852  of 2003 will not survive.  They stand dismissed as infructuous.   Secondly, on 12.7.02 a Closure Report in Final Form was  drawn up in connection with FIR No.138/01 inasmuch as CBI  had taken up the investigation.  The hearing on the Final  Report of Closure was concluded before Sub Divisional  Judicial Magistrate, Alipore.  It was allowed by Sub Divisional  Judicial Magistrate.  However, it may be clarified that the said  Closure was not on merits of the case.  The said Closure was  only on account of the fact that the investigation stood  transferred to CBI.  Consequently, now the Alipore Police  Station has no role to play.  Lastly, in the case of Kari  Choudhary v. Most. Sita Devi and others \026 AIR 2002 SC 441  at page 443, this Court has explained the legal position in case  of FIRs being filed against the same accused in respect of the  same case.  This Court has held that when there are rival  versions in respect of the same incident, they would normally  take the shape of two different FIRs and investigation can be  carried on under both by the same investigating agency.  That,  to set aside the proceedings merely on the ground that the  final report has been laid in the first FIR is, to say the least,  too technical as the ultimate object of every investigation is to  find out whether the offences alleged have been committed  and if so who has committed them.  Even otherwise, the  investigating agency is not precluded from further  investigation in respect of an offence in spite of forwarding a  report under Section 173(2) on a previous occasion.  We quote  hereinbelow paragraphs 11 and 12 of the said judgment which  read as follow:

"11. Learned counsel adopted an alternative contention that  once the proceeding initiated under FIR No. 135 ended in a  final report the police had no authority to register a second FIR  and number it as FIR 208. Of course the legal position is that  there cannot be two FIRs against the same accused in respect of  the same case. But when there are rival versions in respect of  the same episode, they would normally take the shape of two  different FIRs and investigation can be carried on under both of  them by the same investigating agency. Even that apart, the  report submitted by the court styling it as FIR No. 208 of 1998  need be considered as an information submitted to the court  reading the new discovery made by the police during  investigation the persons not named in FIR No. 135 are the real  culprits. To quash the said proceeding merely on the ground  that final report had been laid in FIR No. 135 is, to say the least,  too technical. The ultimate object of every investigation is to  find out whether the offences alleged have been committed and,  if so, who have committed it.  12. Even otherwise the investigating agency is not precluded  from further investigation in respect of an offence in spite of  forwarding a report under Sub-section (2) of Section 173 on a  previous occasion. This is clear from Section 173(8) of the  Code."  (emphasis supplied)

16.     Applying the above test to the present batch of cases, in

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our view, suffice it to state that since investigation has been  done by CBI (common agency) the report submitted by it to  this Court, pursuant to our order dated 8.3.07, would also be  placed before the Third Special Judge, CBI, Calcutta and it  would be for that court to decide whether the aspects covered  in FIR No.138/01 stand covered by the report of CBI in the  said sixteen FIRs or whether FIR No.138/01 deals with some  aspect which is left out by CBI in the said sixteen cases.   Accordingly, it would decide whether the sixteen cases cover  all aspects including those falling under FIR No.138/01 or  whether FIR No.138/01 has some aspects which do not fall in  the sixteen cases and, accordingly, it would decide whether to  accept the report submitted by CBI before us pursuant to our  order dated 8.3.07.  Similarly, it would be for that court to  decide whether alleged siphoning off took place under same  transaction or under separate transactions.  Suffice it to state,  all the above cases from Calcutta, Mumbai and Delhi shall be  tried and disposed of in accordance with law by the Third  Special Judge, CBI, Calcutta.   

17.     In Transfer Petition (Crl.) No.104 of 2004 filed by  Keshav Bangur versus CBI, the applicant has prayed for  transfer of Special Case No.97 of 2003 filed before the Court of  Special Judge, CBI,  Greater Mumbai, (City Sessions Court) be  transferred to the Third Special Judge, CBI, Calcutta.

18.     That, Transfer Petition (Crl.) No.104 of 2004 filed by  Keshav Bangur accordingly stands allowed and consequently  the Special Case No.97 of 2003 arising out of  RC7/E/2002/Mumbai and RC6/E/2002/Mumbai shall stand  transferred from the Court of Special Judge, CBI, Mumbai,  (City Sessions Court) to the Third Special Judge, CBI,  Calcutta.

19.     We are informed that six cases filed before the Special  Judge, Delhi, have already been transferred to the Third  Special Judge, CBI, Calcutta.   

CONCLUSION  20.     We direct all the aforestated sixteen cases to be tried and  disposed of in accordance with law by the Third Special Judge,  CBI, Calcutta.  We direct the Third Special Judge, CBI,  Calcutta, to proceed on day-to-day basis and complete the  trial as expeditiously as possible.   

21.     Consequently, Crl. Appeal No\005\005\005\005..of 2007 arising out  of SLP (Crl.) Nos.5566-67 of 2004, Crl. Appeal No\005\005\005\005..of  2007 arising out of SLP (Crl.) Nos.5568-5569 of 2004, Crl.  Appeal No\005\005\005\005..of 2007 arising out of SLP (Crl.) Nos.5572- 73 of 2004, T.P. (C) Nos.236-243/2002, T.P. (Crl.) Nos.387- 388/2004 and T.P. (Crl.) No.82/2005 shall stand dismissed as  infructuous as they pertain to interim orders passed by the  High Court.   

22.     Accordingly, our above judgment is delivered in Crl.  Appeal No\005\005\005\005..of 2007 arising out of SLP (Crl.) No.634 of  2005, Crl. Appeal No\005\005\005\005..of 2007 arising out of SLP (Crl.)  No.635 of 2005, Crl. Appeal No\005\005\005\005..of 2007 arising out of  SLP (Crl.) No.781 of 2007, which are all disposed of in light of  this judgment along with T.P. (Crl.) No.104 of 2004.  In view of  our aforestated judgment, Writ Petition No.2094 of 1999 filed  by the Akhil Bhartiya Karamchari Sangh in the Rajasthan

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High Court also stands disposed of.

23.     Accordingly, the above matters are disposed of with no  order as to costs.