Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C.3587/2008 Reserved on: 22nd October, 2009 % Date of Decision: 24th November, 2009 # KUMAR SUMAN SINGH @ RANJEET SINGH..... PETITIONER ! Through: Mr. Anup George Chaudhary, Sr. Advocate, Ms. June Choudhary, Sr. Advocate with Mr. Ashok Mehta, Mr. Anil Kumar Chopra and Mr. Samir Ali, Advocates Versus $ THE STATE THR. CBI ..... RESPONDENT Through: Mr.Anindya Malhotra with SI Rajneesh Kumar, EOW/Crime Branch, Delhi Police. * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : V.K. JAIN, J. This is a petition u/s 482 of the Code of Criminal Procedure, for quashing RC-DA1-2003-A-0058 CBI/ACB, Delhi stated to have beenregistered by CBI under Section 120-B read with Sections 380/408/411/511 of IPC. Page 2 of 35 2. On 22.11.2003, a secret information was received by Crime Branch of Delhi Police by one Rajiv Saxena, about the leakage and sale of question paper of CAT examination to be held on 23.11.2003. The police officer, who received the information, contacted Rajiv Saxena who agreed to sell the question paper to him for Rs. 5.00 lacs and asked him to contact his associate Rajesh Suchan on his mobile No. 9810931435. The Police officer contacted both of them a number of times on telephone and it was agreed that Rajesh Suchan would meet him at Outer Ring Road, near Munirka. Thereupon he organized a raiding party and reached the appointed place. Rajesh Suchan met him and negotiated with him. He contacted Rajesh Saxena who directed them to reach near Radisson Hotel. When the police official reached there along with Rajesh Suchan, the complainant Natwar Meena and his friend Virender Kumar approached them. The police officers disclosed their identity to the complainant and his friend Virender Kumar who explained all the circumstances and the complainant also showed his CAT identity card to them. On inquiry, police officials came to know that the candidates were being taken to hotel Shanti Palace on NH-8. Two police officers were deputed to inquire and verify at hotel Shanti Palace. Those police officials reported that CBI had already raided Hotel Shanti Palace and their action was still Page 3 of 35 going on. Thereupon, statement of complainant Natwar Meena was recorded, who stated that at about 6 pm he received a telephone call from one Guruji, who inquired as to whether he wanted question paper of CAT exam 2003. He received another call from Guruji at about 6.45 pm and was asked to come near Radisson Hotel at about 9.30 pm. He along with his friend Virender Kumar took chance to get the question paper of CAT and made telephone call to Guruji on his mobile, number of which had already given on the mobile of the complainant. Guruji asked for Rs. 1.00 lac for the question paper. When they were waiting for Guruji, 3 persons namely Mahender, Arvind Kumar and Bharat Bhushan reached there and asked the complainant whether he had brought Rs. 1.00 lakh for the question paper. When he replied in negative, they asked the complainant and his friend to wait till Guruji came there. In the mean time the police party reached there along with Rajesh Suchan. All the four persons, referred above were arrested. During interrogation by police Rajesh Suchan disclosed the name of Santosh Kumar, who, in turn, disclosed that Rajesh Saxena was residing in a hostel in Janakpuri. Rajesh Saxena was arrested from there. He informed the police that Rajesh Suchan had introduced him to one Ashutosh Kumar who during conversation revealed to him that Dr. Ranjit Singh of Patna had Page 4 of 35 the paper of CAT examination and that all the candidates will reach petrol pump, near Radisson Hotel from where they shall be taken to Hotel Shanti Palace where solved question paper of CAT examination would be shown to him. Accordingly, he directed Rajesh Suchan to take the candidates to petrol pump, where Bharat Bhushan, Arvind Kumar, Rahul and Mahender etc. were to meet and take them to Hotel Shanti Palace. During further investigation, officers of the Crime Branch discovered that Kumar Suman Singh @ Ranjit had already been arrested by the CBI. 3. According to Delhi Police, it was established during investigation that Kumar Suman Singh @ Ranjit was the leader of the gang who got the question paper stolen and brought Ashutosh Kumar, Ashok Kant, both of whom could not be arrested, and Bharat Bhushan, Arvind Kumar, Rajeev Saxena, Rajesh Suchan and Rahul to Delhi for arranging candidates. Accused Arvind Kumar was also promised some payment. As per the chargesheet filed by Crime Branch, the accused persons made an attempt to cheat the complainant and other genuine candidates by stealing the question paper and then selling the same on hefty price. It has been further alleged that accused Rajeev Suchan tried to destroy the evidence by taking out the Page 5 of 35 SIM card of his mobile phone and concealing them in a verandah. Arvind Kumar and Alok Kant could not be arrested during investigation. The charge sheet by Delhi Police has been filed under Section 120 B of IPC read with Section 379/420/511 and 201/511 of IPC. 4. In the charge sheet filed by CBI, it has been alleged that a reliable information was received to the effect that Suman Kumar Singh and his associates either pilfered during transit or misappropriated the question paper of CAT for admission to various Management Institutes during the period between printing and preparation of the question paper and were delivering the question paper to prospective candidates appearing for the exam to be held on 23.11.2003, in Hotel Shanti Palace, after taking lacs of rupees from each candidates. A surprise check was conducted in hotel Shanti Palace and they found Arun Kumar Sinha, Kumar Suman Singh @ Ranjit, Manoj Kumar, Hari Shankar Chaudhary along with Sanish Kumar, Proful Chandra Jha, Anurag Thakur and K. Rishi were staying in room No. 122 and 123 of the Hotel. Different sections of question paper were recovered from the possession of Manoj Kumar, Hari Shankar Chaudhary, Sanish Kumar and Proful Chandra Jha, whereas identity cards of the candidates were Page 6 of 35 recovered from the possession of Kumar Suman Singh. The candidates confirmed that they were assured by accused No. 1 Arun Kumar, accused No. 2 Kumar Suman Singh, accused No. 3 Manoj Kumar and accused No. 4 Hari Shankar Chaudhary that question papers given to them was a copy of question paper of CAT 2003 examination to be conducted on 23.11.2003 for which they had to pay an amount of Rs. 2 to 4 lakhs to them. 5. During surprise check by CBI, accused No. 1 Arun Kumar Sinha, accused No. 2 Kumar Suman Singh, accused No. 5 Sanish Kumar and accused No. 7 Anurag Kumar Thakur were found sitting in room No. 122 of Hotel Shanti Palace, whereas accused No. 3 Manoj Kumar, accused No. 4, Hari Shankar Chaudhary, accused No. 6 Praful Chandra Jha and accused No. 8, K.Rishi were found sitting in Room No. 123. Original Admit Card of A.K. Thakur, Sanish Kumar, K.Rishi and Praful Chand Jha were found in right hand of accused No. 2 Kumar Suman. Four sheets from question No. 64 to 97, with tick mark on the answers, were found in the hands of Manoj Kumar. 8 sheets from question No. 30 to 112, with tick mark on most of the answers, were found in the hands of Hari Shanker Chaudhary. 6 sheets from question No. 51 to 75 and photocopy of hand written sheet from serial No. 1 to 64 were found in the hands of A.K. Thakur. 9 sheets from Page 7 of 35 question No. 1 to 50, with tick mark on most of the answers, along with hand written photocopy of paper were, found in the hands of Sanish Kumar. 4 sheets from question No. 130 to 150, with tick mark on most of the answers, alongwith one hand written photocopy of paper were found in the hands of Praful Chandra Jha. 6. During investigation it was revealed that photocopies of question bank recovered during the course of surprise check was an exact replica of series 222 of question paper of CAT 2003 examination paper and was distributed to various candidates. Recovered question bank also matched with series 111, 333 and 444 of the question booklets, though the sequence of the question was different. 7. During investigation, CBI found that question paper for CAT 2003 examination was printed at IBPS press in Mumbai. Accused No. 1 Arun Kumar Sinha, accompanied by accused No. 4 Hari Shankar Chaudhary, had visited Mumbai on 27.10.2003 and stayed in Hotel Highway Inn where he met accused No. 9 Sanjeev Kumar. Accused No. 9 was working in IBPS press as daily wager worker with the binding contractor Shri Vishal Shati Ram Gaurav. It was accused Sanjeev Kumar who handed over the question paper to Arun Kumar Sinha in a house in Kalyan Page 8 of 35 (East), District Thane, where he was staying with accused NO. 1 Arun Kumar Sinha and accused No. 4 Hari Shankar Chaudhary. Arun Kumar Sinha paid a sum of Rs. 18.00 lacs to accused No. 10 Yogendra Prasad who is father of accused No. 9 Sanjeev Kumar and paid another sum of Rs. 3.25 lacs to Sanjeev Kumar at Mumbai. Arun Kumar Sinha took the help of one Mohd. Shahin for solving the question papers. Statement of Moh.d Shahin has been recorded u/s 164 Cr. P.C. It was found during investigation that a number of persons were contacted by accused Arun Kumar Sinha and Manoj Kumar for selling the question paper and requested them to provide candidates who could purchase the question paper. On comparison with the hand written sheet recovered during investigation, it has been found that the specimen hand writing of accused Manoj Kumar and Arun Kr. Sinha tallied with the hand writing of those hand written sheets. It was also revealed that the rooms in hotel Shanti Palace were booked by accused Arvind Kumar in the name of Vimal Kumar. 8. The CBI has, therefore, chargesheeted Arun Kr. Sinha, Kumar Suman Singh @ Ranjit, Manoj Kumar, Hari Shankar Chaudhary, Sanish Kumar, P.C. Jha, A.K. Thakur, Qutub Rishi, Sanjeev Kumar and Yogesh Kumar under section 120B of IPC Page 9 of 35 read with Section 380, 408 and 411 thereof read further with section 511 of IPC. Accused Sanjeev Kumar has also been charged for substantive offence under Section 380 and 408 of IPC whereas accused Sanish Kumar, PrafulChander Jha, Anurag Kumar Jhakar and K. Rishi have been charged for substantive offence under Section 411 of IPC. 9. The petitioner Kumar Suman @ Ranjit Singh has sought quashing of FIR registered by CBI, and the proceedings arising therefrom, on the ground that since an FIR had already been registered by the Crime Branch of Delhi Police before registration of FIR by the CBI, and investigation had also been carried out by it, second FIR registered by CBI and the proceedings arising therefrom are liable to be quashed. The plea taken is that petitioner can’t be exposed only once to the criminal proceedings in respect of the same allegation and a second or successive FIR on the same allegation could not have been registered. The contention of the petitioner is also that the parallel proceedings in 2 different courts would culminate in double jeopardy, which is not permissible in law. 10. In support of his contention, the learned counsel for the petitioner has referred to the judgment of the Hon’ble Supreme Court in T.T. Antony Vs. State of Kerala & Ors (2001) VI SCC Page 10 of 35 181. In the case before the Hon’ble Supreme Court, 5 persons died and a number of persons were injured during a firing by police on November 25, 1998. A few police officers also sustained injuries. The firing was opened by the police at two places, in the proximity of Town Hall on the Order of Executive Magistrate and DSP and in the vicinity of a police station on the order of Suptt. Of Police. Crime No. 353/94 was registered in respect of occurrence which took place near Town Hall and Crime No. 354/94 was registered in respect of occurrence which took place in the vicinity of the police station. 11. The incidents having given rise to public outcry, an inquiry under Commission of Enquiry Act was ordered by the Kerala Government. It was found during inquiry that the police firing was not justified and three persons including Shri T.T. Antony, who was former Deputy Collector, were responsible for the firing. On receipt of the report of Enquiry Commission, the Govt. issued orders for registration of a case and investigation by a Senior Officer. Crime No. 268/97 was thereupon registered against the persons named in inquiry including Shri T.T. Antony. The case registered as Crime No. 353 of 94 and 354 of 1994, which were mainly against the workers, came to be closed after registration of Crime No. 268/97. Three writ petitions were filed, Page 11 of 35 one by Mr. T.T. Antony, second by one Mr. Chandrashekhar and the third by some Constables seeking quashing of FIR registered vide Crime No. 268/97 or in the alternative for investigation by CBI. A learned Single Judge of the High Court directed re investigation by CBI. In appeal a Division Bench of the High Court directed fresh investigation by state police. Being dissatisfied T.T. Antony and some others came to the Hon’ble Supreme Court, where the learned counsel for the petitioners questioned the legality of the second FIR registered as Crime No. 268/97 and the investigation that followed it, when two FIRs pertaining to the same occurrence had already filed and registered as Crime No. 353/94 and 354/94. The contention was that registration of fresh FIR in respect of the very same incident was not followed and therefore all the steps taken pursuant thereto were illegal and liable to be quashed. 12. The Hon’ble Supreme Court noted that an information given under Sub Section (1) of Section 154 of Cr. P.C, which is commonly known as FIR, is the earliest and the first information of a cognizable offence, which sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr. P.C. as the case may be, and forwarding of a police report under Page 12 of 35 Section 173 thereof. It was observed that some time more information than one are given to a police officer in respect of same incident, but, in such a case he need not enter every one of them in Station House Diary and such information received after commencement of investigation will be statements falling under Section 162 of the Code of Criminal Procedure and cannot be treated as an FIR as treating such information as an FIR would, in fact, be a second FIR which is not in confirmity of the scheme of the Code of Criminal Procedure. It was observed that if in an FIR regarding the offence under Section 307 or 326 of IPC, the Investigating Officers received a fresh information that the victim has died, no fresh FIR under Section 302 needed to be registered and in such a case alteration of the provision of law of the First FIR is the proper course to adopt. Taking another example, the Hon’ble Court observed that in a situation where a person H having killed his wife W, informs the police that she had been killed by some unknown person but later on it is detected that the murder was committed by H, it does not require filing of fresh FIR against H. It was further observed that if after sending report u/s 173 of Cr. P.C. the police officer comes into possession of further information or material, he need not register a fresh FIR since he is empowered to make further investigation and the further information which he Page 13 of 35 collects during further investigation is required to be sent to the Magistrate under sub section (8) of section 173. 13. The Hon’ble Court, inter alia, held as under : From the above discussion it follows that under the scheme of the provisions of Sections 154 155 156 157 162 169 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C. 14. The Hon’ble Supreme Court further observed as under: Page 14 of 35 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of 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 Cr.P.C. or under Article 226/227 of the Constitution. 15. On comparison of the FIRs in Criminal No. 353/94 and 354/94 on one hand an FIR in crime No. 268/97 and on the other hand the hon’ble Supreme Court noted that date and place of occurrence were same and narration of facts were almost the Page 15 of 35 same and therefore in truth and substance, essence offence in Crime No. 353/94 and 354/94 was the same as in Crime No. 268/97. It was noted that on the day crime No. 268/97 was registered, investigation in Crime No. 353 and 354 of 94 was in progress and in these circumstances registration of Second FIR in regard to the same incident and making of a fresh investigation was not permissible. 16. Learned counsel for the petitioner has also referred to the decision of a learned Single Judge in this court in Shyam Sunder Vs. MCD 2007 III AD (Crl.) 444. In this case, the information was received by BIS Bureau of Indian Standard, from one D. Gupta, that the manufacturer of a water proof compound was using raising of product manufactured in the month of February, 2002, despite expiry of the certificate given to it by BIS. The manufacturer and its Director were alleged to be guilty of offence under Section 11 and 30 of BIS Act 1986. The complainant had also given some information to the police which had led to registration of an FIR resulting in filing of a charge sheet for the offence under section 11/33 of BIS act. It was noted by the learned Single Judge that the material collected by BIS were undisputedly used by Delhi Police and test report annexed to the charge sheet filed by the police also formed the Page 16 of 35 basis of complaint filed by BIS. Admittedly, no other incident relating to any other product had been mentioned in the complaint. In these circumstances, it was held that since charge sheet had already been filed by the police, a complaint by BIS could not be allowed to proceed since that would expose the petitioner to the rigorous of second trial on the same facts. 17. In Nirmal Singh Kalhon Vs. State of Punjab (2009) 1 SCC 441, an advertisement was issued by Punjab Government for recruitment of 190 Panchayat Secretaries. Though written test was held, the posts could not be filled up. In the mean time, 545 Panchayat Secretaries were appointed on adhoc basis. One of the applicants, who had applied in response to the advertisement of 190 posts, challenged the ad-hoc appointments by filing a Writ Petition in Punjab and Haryana High Court, which directed completion of the selection process. Two more advertisements were issued for filing up 700 and 800 posts of Panchayat Secretaries. Another writ petition was filed in the High Court in which selection for the post of Panchayat Secretaries was directed to be completed within one month. 190 candidates were selected after the interview. Their selection was challenged by filing yet another writ petition whereupon an inquiry was ordered by the High Court into the selections made Page 17 of 35 by the department. It was recommended in the inquiry that matter required investigation by Vigilance Department. Pursuant thereto an FIR was registered against several persons including Sh.Nirmal Singh Kahlon u/s 420/467/468 and 120 B of IPC and Sections 13(1)(d)(d) and 13(2) of Prevention of Corruption Act. A charge sheet was filed against Nirmal Singh Kahlon and J.P. Singhla. Pursuant to a direction given by Punjab and Haryana High Court, Punjab Government issued notification for investigation by CBI into the alleged scandal in appointment of Panchayat Secretaries. The notifications issued by the Government were challenged on various grounds including that since an FIR has already been lodged by Vigilance Department, another FIR for the same cause of action could not have been lodged by the CBI in view of the decision of Hon’ble Supreme Court in the case of T.T. Antony (Supra). It was noted by the Hon’ble Supreme Court that the first FIR referred to the acts of omissions and commissions during the tenure of the appellant as a Former Minister, relating to recruitment of various posts of Tax Collectors, Patwaries, Clerks as well as with regard to filling up of vacancies in handicapped category of Gram Sewak in which appellants were said to have Page 18 of 35 accepted heavy amount of bribe, whereas the High Court, which directed investigation by CBI, was concerned only with appointment of Panchayat Secretaries and the only allegation in the Public Interest Litigation before the High Court was with regard to appointment of favourites who did not have the qualifications. 18. The Hon’ble Supreme Court in para 44 of the judgment held as under : The second FIR lodged by the Central Bureau of Investigation (CBI), however, was on a wider canvass. It was lodged after holding a detailed preliminary inquiry. CBI collected a large number of materials. It had also recorded the statements of a large number of persons. Whereas the first FIR dated 14.06.2002, thus, contained the misdeeds of individuals, the second one depicts a crime committed in course of selection process of Panchayat Secretaries involving a large number of officers. The second FIR dated 26.06.2003 enumerates as many as fifteen categories of irregularities committed by various persons involved in the said selection process. Responsibility has not only