Subhendu Samanta, J.
1. This is an application u/s 482 of the Code of Criminal procedure for quashing an FIR being RC No. 010/2014A/0015 dated 14.06.2014 u/s 120B/420 of IPC pending before the Learned Metropolitan Magistrate, Court No. 21, Bichar Bhaban wherein a charge sheet has been submitted dated 31.03.2016 by the CBI.
2. The brief fact of the case is that the CBI previously initiated an investigation on the basis of an FIR being No. RC 0102012A 002 dated 10.01.2012 against the present petitioner and some other Government Officials. It is the contention of the petitioner that the CBI has no authority to register Second FIR dated 14.06.2014 after filing the first FIR dated 10.01.2012 on the basis of selfsame set of allegations. The petitioner argued that both the FIRs were lodged by the CBI before Learned Court.
First FIR being RC0102012A0002 dated 10 January 2012 [shall be referred as RC-02/2012 hereinafter] under Sections 120B, 420, 467, 468, 471, and 477A of the Indian Penal Code, 1860 read with Section 13(2) and 13(1)(d) of the Prevention and Corruption Act, 1988 was filed against the Petitioner and others.
Subsequent FIR being RC0102014A0015 dated 14 June 2014 [shall be referred as RC-15 of 2014 hereinafter] stating the day, date and time as "During the year 2011-2012" under Section 120B, 420 of the Indian Penal Code, 1860 together with 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 also against the Petitioner and others.
3. It is further case of the petitioner that first FIR registered against the present petitioner covering the period from 2006 to 2011 in respect of alleged evaded freight charge and the violation of Rates Circular No. 36 of 2009 of the Ministry of Railways. Petitioner further contended that, the subsequent FIR is in respect of one financial year being 2011 -- 2012 in respect of alleged evaded freight due to the violation of the same Rates Circular by the Ministry of Railways. It is the further case of the petitioner that the allegation in the 1st FIR are not different or distinct from the allegations made in the subsequent FIR; only the Government Officials are not made accused in the subsequent FIR. Thus the offences u/s 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 was dropped.
4. It is the further case of the petitioner that the CBI filed a charge sheet of the subsequent FIR on 31st March 2016 along with the list of documents which were already used and filed before the Learned Magistrate as cited documents in the charge sheet of the 1st FIR. The petitioner further contended that the CBI has filed an application before the Learned MM concerned for granting permission to take over the seized documents of RC case No. 02 of 2012 for the interest of investigation of RC Case No. 15 of 2014. The petitioner further contended that on the prayer of the CBI, Learned Magistrate allowed the Investigating Agency to taking over the seized documents in RC Case No. 02 of 2012 and used those documents of RC Case No. 15 of 2014. It is the submission of the petitioners that the conduct of CBI itself proved that the merits of both the FIRs are same and similar. It is the prayer of the petitioners that the 2nd FIR (RC No. 15 of 2014) and charge sheet dated 31st march 2016 is void ab initio, illegal and required to be quashed.
5. Mr. Ratnanko Banerjee Learned Advocate, appearing on behalf of the petitioner submits that the CBI admits in their affidavit- in- opposition that the information and documents collected/seized during the investigation under 1st FIR were the same documents which were relied upon while lodging the charge sheet dated 31.03.2016.
6. Mr. Banerjee further argued that the contents of the 2nd FIR does not disclose about the specific information (oral) and when how they received it, rather they already have it by virtue of the 1st FIR. Mr. Banerjee further argued that the FIR contained about a source information which was oral and received in the Police Station at 17:00 hrs is blatant false. Mr. Banerjee further argued that the 2nd FIR suppressed the existence of 1st FIR. Mr. Banerjee argued further that by virtue of decision of Hon’ble Apex Court. In T.T Anthony Vs. State of Kerala (2001) 6 SCC 181. The second FIR is not maintainable and prohibited under the law.
7. In support of his contention Mr. Banerjee also cited the following decisions. There are (i) Amit Bhai Anilchandra Shah Vs. CBI (2013) 6 SCC 348, (ii) The State of MP Vs. Ratan Singh (2020) 12 SCC 630, (iii) Tarakdash Mukherjee & Ors. Vs. State of UP & Ors. 2022 SCC Online SC 2121, (iv) Subramanium Vs. State of Tamilnadu (2009) 14 SCC 415: (2010) 1 SCC (Cri) 1329.
8. Mr. Banerjee further argued that registration of Second FIR, the charge sheet are violative to the fundamental right guarantee u/s 14, 20 and 21 of the Constitution of India. He further argued that the Union of India has already filed civil suits against the present petitioner seeking recovery of evaded freight, thus the instant criminal case cannot continued. So he prayed for quashing of the instant FIR, charge sheet dated 31.03.2016 and connected orders of the Learned Magistrate thereby. CBI used affidavit-in-opposition. CBI also filed a written notes of argument after oral submission.
9. Learned Senior Counsel Mr. Arun Maity appearing on behalf of the CBI submits that a reliable source of information was received by the CBI, ACB, Kolkata and upon verification it was found that the Directors of M/s Reshmi raising Metalics Limited (petitioners) entered into a criminal conspiracy with unknown officers of South Eastern Railway and in showing Ex-Iron ore for domestic purpose during 2011-12, though they have used the said iron ore for commercial purpose; thereby the petitioners in furtherance to the criminal conspiracy with some officers of Eastern Railway evaded a huge amount of freight charge by giving false declaration to use the proceed in domestic purpose. Thus there were consequential wrongful gains to the petitioners.
10. Mr. Maity submits allegations of the two FIRs are not at all similar. The date of occurrence, the time period of occurrence, place of occurrence, quantum of money involved are separate and distinct thus, the subsequent FIR cannot be said to be a second FIR.
11. Mr. Maity further argued that the pendency of civil suit before Civil Court cannot be a ground for quashing an FIR. Mr. Maity further argued that the object of civil suit is to recover the money which does not tantamount to punishment to bring the offender under the clutches of law. Mr. Maity further argued that mere institution and /or pendency of the civil suit cannot be a bar to any proceedings of a criminal case and contentions thereby when sufficient substances are collected during the investigation. The argument which was sought to be advanced on the freight charges which is not similar in case of domestic consumption and also in case of commercial use, cannot be said to be a bar in proceeding with the criminal proceeding by initiation of FIR in as much as the rate for domestic consumption is less than that of the commercial one but if with intention to cheat the Railways by giving false declaration that it would be for domestic purpose and thereby paying lesser amount than that of commercial one and by actually using it for commercial purposes making unlawful gain by such transactions and causing wrongful loss to public money amounts to criminal offence which has been established during investigation on the basis of evidences/materials collected in the case under challenge before this Hon'ble Court and as such the freight charges, unless it is said to have been equal in both the cases, the accused persons should not have given false declaration. As such, the argument on freight charges as to the policy decision of the Railways is a subject matter of challenge before a different forum and is not to be used as a mechanism for quashing of criminal proceedings. Assuming but not admitting for the sake of argument that some materials collected in connection with the first case has been referred to as they are relevant pieces of evidence, but not the fact in issue for adjudication nor in the other separate FIR, these are not the fact in issue to be considered during trial although those are relevant facts and as such simply because of reference of certain documents in the separate FIR subsequently made and charge sheet filed on basis thereof cannot be said to be the second FIR. The same is based on the misconception of fact and law on the basis of which the petitioner has sought to canvas for quashing the separate FIR which was lodged subsequently along with distinct set of occurrences. Regard being had to the facts, circumstances and the materials on record, the proceeding under challenge, cannot be said to be second FIR and as such the principle laid A down in the present factual matrix of the case is distinguished. The time and/or period of occurrence, place and/or area of operation, quantum of amount defrauded are all distinct in both the FIRs which will be apparent on plain reading of both the FIRs and Chargesheets have been filed in both the cases on the basis of such materials collected in both the cases and merely because some references of an earlier case in the chargesheet which referred to as relevant in the other case, can be considered to be a relevant in connection with the above case but not a fact in issue but as the FIR and chargesheet challenged in the revisional application and the ground of alleged second FIR is not tenable at all and as such the revisional application filed by the petitioner cannot be sustained in law.
12. In support of his contention Mr. Maity cited several decisions they are as follows:
"a) Krishan Singh Vs. Gurpal Singh & Ors. [AIR (2010) SC 3624]
b) Syed Askari Hadi Ali Augustine Iman and Anr. Vs. State (Administration of Delhi) and Ors. [AIR (2009) SC 3232-(Criminal Appeal 416 of 2009)]
c) M. Krishnan Vs. Vijay Singh and Anr. [2011 Cr.L.J. 4705 S.C.]
d) Kamala Devi Agarwal Vs. State of West Bengal And Ors. [AIR (2001) SC 3846 Criminal Appeal 1059 of 2001]
e) M.S. Sheriff Vs. State of Madras & Ors. [AIR (1954) SC 397]
f) Priti Saraf And Anr. Vs. State (NCT of Delhi) & Anr.[(2021) 16 SCC 142]
g) N. Gurucharanam Vs. State of Andhra Pradesh [2013 Cr.L.J. 1061 Andhra Pradesh High Court)]
h) State of Bihar Vs. Murad Ali & Ors [(1988) 4 SCC 655]"
13. Heard the Learned Advocates. Perused the petition along with the connected documents containing two FIRs, Charge sheets, and connected papers. Though initially, the petitioner raised the points that the Union of India has filed a civil suit for recovery of freight charge against the present petitioner for which the instant FIR is liable to be quashed; but ultimately during the argument the petitioner did not place the points. Thus it appears to me that this particular ground is not required to be dealt with by this court to consider the prayer of quashing.
14. The only point for quashing the instant FIR is that the present FIR is second FIR on the basis of self same set of allegations; thus the present FIR is liable to be quashed as it is violative of Fundamental Rights. It is the further ground that the second FIR is not maintainable in law. By virtue of decision of Hon’ble Apex Court in TT Anthony (Supra) and Amit Sah (Supra).
15. Let me consider the allegations made in two FIRs as annexed by the present petitioner. One after another. The alleged first FIR (RC 02 of 2012 dated 10.01.2012) contents...........
"Information has been received from a reliable source alleging that Shri Ramesh Saran Rai, the then By COM (Project & Planning), S. E. Railway, Gardenreach, Kolkata; unknown officials of Railway Department; unknown officials of Central Excise, Midnapore Division, Range-II, West Bengal, M/s. Rashmi Metaliks (pvt) Ltd., Gokulpur, PO: Shyamraipur, West Midnapore, West Bengal through its MD, Directors, Add. Director & Co. Secretary and unknown others entered into a criminal conspiracy, during the period 2008 to 2011 to cheat Railway Deptt,, Central Excise & Customs Department and other Govt. Departments/ authorities in furtherance of which, they by constructing a private Railway siding in Belkundi area (near Barbil, Dist. Keonjhar, Orissa) in illegal manner by diverting a line from the rail track of Thakurani Railway Siding of a Govt. of India company namely Orissa Mineral Development Co., Kolkata (OMDC) for taking preference/priority from Railway in the transportation of iron ore and fraudulently transporting huge quantity of iron ore under concessional freight rates meant only for domestic consumption and using the said transported iron ore for export purpose by submitting / using fake/forged monthly excise returns to the Railway Deptt. and caused thereby a wrongful loss to S. E. Railway to the tune of about 660 crores with corresponding wrongful gain co themselves.
It has transpired that Rashmi Metaliks Ltd. was established and incorporated as a Pvt. Ltd. Company with the Registrar of West Bengal from 30-01-2004 vide Regn. No. 97737 by Shri Sajjan Kumar Patwari. At present Shri Sanjay Kumar Palwari is Managing Director and Shri Sajjan Kumar Patwari, Smt. Bhagabati Devi Patwari, Shri Sanjib Kumar Patwari & Shri Surendra Jha are Directors. Shri Shashi Kumar is Addl Director and Shri Aman Kumar Verma is Secretary of this Company. This is a unlisted company and is engaged in the manufacturing and trade of iron products. Registered Office of Rashmi Metaliks Ltd. is situated at Premlata Building, 39, Shakespeare Sarani, Kolkata -700 017 and its Works Office is situated at Gokulpur, PO: Shyamraipur, Dist. West Midnapore, West Bengal. This company was merely a 'raising contractor (i.e. a contractor, who does digging, crushing and screening activities of iron ore on behalf of mine owner) till 2007 and the source of their revenue was from raising only. They were not selling any steel iron product till 31-03-2007. The Company applied for registration with Central Excise on 29-01-2007 to start production of pig iron. Manufacturing unit was established by this company on 13-06-2007 as per factory licence certificate issued by the Directorate of Factory, West Bengal. This company manufactures Pig Iron, Granulated slag, Runner, MS Scrap, MS Ingot, MS Billets, TMT Bars and Grate Bar Scrap.
It has further transpired that pig iron and other products manufactured by this company are dutiablo Items for which different excise returns are submitted and excise duty is paid by the company to the Excise Department. This company buy iron ore from different parties of Orissa to manufacture iron products and also export iron ore from Haldia and other ports. This company used to transport iron ore by Railway Transport from their Belkundi siding (between Barajamada and Barbil Rly. Stations of Chakradharpur Division of S. E. Railway) to their factory located at Gokulpur. It is alleged that the said Belkundi siding was established by this company in a highly irregular / illegal manner in connivance with Shri Ramesh Saran Rai, the then Dy. COM (Project & Planning), S. E. Railway, Gardenreach, Kolkata and other unknown officials of Railway in the year 2006. Belkundi siding is in operation since August 2006. This siding was established without following the laid down Rules & Regulations of Railways and in utter violation of guidelines of Railway Board for construction of new private siding.
It has been disclosed that Orissa Mineral Development Co. (OMDC), a Govt. of India Co. is having private railway siding Thakurani near Barbil. This railway siding was made by OMDC for effecting delivery of iron ore from their mines to different customers. This Railway siding of OMDC starts from Thakurani Mines and terminates to the main rail track of S.E. Rly on a point between Barajamda (in Jharkhand State) and Source Orissa State). The distance between main line and Thakurani (TK) Rly siding is about 4 kms. M/s Rashmi Metaliks Pvt. Ltd., with a view to facilitate transportation of iron ore and to obtain more rail way rakes priority is given by Railway to the customers having their own railway siding), applied for construction of ..... Rly siding between Barajamda & Barbil Stations by making puncture of Thakurani Siding of OMDC to use as take off point. Shri Ramesh Saran Rai, the then Dy..COM (Project & Planning), S. E. Railway, Gardenreach, Kolkata approved the project report/proposal of M/s. Rashmi Metaliks in a very short span of time in June, 2006 without following laid down rules /regulations and Railway Board's Policy Instruction for the construction of private siding over railway line as well as encroaching some portion of railway track of Thakurani Railway Siding of OMDC. Accused officials of Railway were not required to allow M/s. Rashmi Metaliks Pvt. Ltd. to construct a private railway siding taking a diversion or take off point from the existing railway siding of OMDC. Permission, if any, should have been given by the accused officials of Railway to M/s. Rashmi Metaliks Pvt. Ltd. to construct a private siding by making a parallel Rallway track from Barajamda Service Station upto the loading point of private siding of this company and not by puncturing TK Siding of OMDC. Since, construction of a railway siding in such a regular manner entailed a huge investment/ expenditure, approval/ permission for construction of a private siding was given in the illegal manner as mentioned above by the accused officials of Railway to cause undue pecuniary advantage to M/s. Rashmi Metaliks Pvt. Ltd. At that time, M/s. Rashmi Metaliks was not manufacturing pig iron and was merely a raising contractor and establishing a private railway siding in such an illegal manner with the connivance of accused officials of Railway, facilitated the said company to commit the fraud by fraudulent transportation of iron ore and freight evasion.
It is alleged that complaints were made by OMDC to S.E. Rly. with copy to Shri R.S. Rai, the then Dy COM in May 2006 itself that M/s. Rashmi Metaliks Pvt. Ltd. is constructing one private siding in between Barajamda and Barbil and its trying to puncture TK Siding of OMDC to use as take off point which is highly objectionable and illegal as no consent for such construction was obtained either by the party or by the Railway and it should not be allowed at any cost as it will disrupt despatch schedules of OMDC resulting into production/despatch of iron ore. But no action was taken on these complaints of OMDC by Shri R.S. Rai, the then Dy. COM who not only approved the proposal of M/s. Rashmi Metaliks but also permitted this company to stack construction materials for construction on Railways land even without execution of mandatory siding agreement and licensing agreement with M/s. Rashmi Metaliks.
It is revealed that M/s. Reshmi Metaliks Ltd. was required to transport iron ore from the mine heads to their Belkundi Private Siding for domestic use by truck and stock them for onward despatch to their plant located at Gokulpur by railway rates. Similarly, they were exporting iron ore from Haldia and other Ports. It is alleged that Dy. Director of Mines (Joda), Govt. of Orissa had granted permission to Rashmi Metaliks for movement of iron ore from various nearby mine heads to their own private siding at Belkundi and not beyond it by road. The said company was supposed to resort to rail mode for onward transport of iron ore upto their plant at Gokulpur. DDM (Joda) had not permitted the said company to directly transport iron ore by road to Haldia Port for which the company was required to obtain Transit Passes from the Mining Dept.
As road infrastructure is no adequate and costly also, movement by rail is one of the principal modes of transport to move iron ore out of Chakradharpur Division of S.E. Rly. Since the availability of railway rakes is less than the demand for transportation of iron ore in West Bengal and Orissa, Railway has various kinds of Loading Priorities for transportation of iron ore. For example, as per Railway Iron Ore Policy, a "priority C customer enjoy assured allotment of a definite number of rakes subject to making commensurate Iron/Steel production.
It has also transpired that M/s Rashmi Metaliks Ltd. was under the category of "Programmed Traffic”and was enjoying the status of Priority C customer. The Criterion for becoming eligible "Priority C customer is generation of minimum 0.5 million tons of traffic by the customer. Iron ore transported under this category can be used for domestic consumption only and not for any other purpose. The authority, for a allotment of rakes as specified in the Board letter dt. 16-06-2006, is the Office of Executive Director/ Director of Rail Movement (EDRM) /Kolkata. Rallway's Iron Ore Policy states that in order to avail assured number of rakes for iron ore loading, the company must produce documentary evidence of actual manufacturing of finished steel products commensurate to the iron ore transported by them through rail. The evidence of production is to be given by the company by submitting a particular type of Excise Document called the "ER-I" Form [Excise Return Form). A Priority -"C' customer is required to submit these ER-I Forms on a Quarterly basis to the Office of Executive Director/Director of Rail Movement, Kolkata. On the basis of actual production figures reflected in these Excise Certificates, rake allotment for the next Quarter is done by Office of EDRM, Kolkata
It is alleged that M/s. Rashmi Metaliks was enjoying priority C status and was getting assured monthly allotment of rakes from June 2007 to March 2008. They were allotted ten rakes per month during this period (total 90 rakes were allotted) for transportation of iron-ore for domestic use. Forged ER 1 were submitted by this company to EDRM showing inflated production figures. These returns were purportedly issued under the signatures of Sri Pranjit Sarkar, the then Supdt, of Central Excise, Range II, Midnapur Division. These forged ER1 forms were submitted by M/s. Rashmi Metaliks Ltd. on monthly basis to the Executive Director, Rail Movement, Kolkata for allocation of iron ore rakes. In these government documents, production figures were altered to show highly enhanced monthly production output with view to garner more number of iron ore rakes. The actual figure of production as indicated to Central Excise and inflated figure of production as submitted to the railway are mentioned in the table below:
Month
The
actual
Inflated figure
Inflated
figure
of
of
production
production
production as
as
submitted
amount in %
indicated
to
to the railway
Central
Excise
June- 2007
911.36
1,911.36
109.73
Jul-2007
1,277.52
6,619.21
418.13
Aug-2007
6,378.43
11,378.43
78.39
Sep-2007
6,890.76
17,365.71
152.01
Oct-2007
5,169.42
21,169.42
309.51
Nov-2007
3,251.99
19,251.99
492
Dec-2007
5,400.46
17,400.46
222.21
Jan-2008
8,513.08
18,513.08
117.47
Mar-2008
5,612.59
21,612.69
285.08
It is alleged that the accused officials of Director of Rail Movement, Kolkata allotted a huge number of railway rakes to the said company without making any query regarding installed capacity vis a vis requirement of iron ore to produce finished iron equivalent to installed capacity. They did not consult officials of Central Excise, Midnapore Division about the contract made with this company and to confirm production of iron. They also failed to get the monthly production certificates ER-1 confirmed from Range -II of Central Excise, Midnapore Division which were apparently forged ER1 as mentioned above. The accused officials of EDRM Office accorded "Priority C" status to this company in May 2007 on the basis of their declared production capacity which was 1 lakh Ton per annum. 1.6 lakh ton of iron ore is required to manufacture 1 Pig Iron For transporting 1.6 lakh ton of iron ore, a maximum of 41 Railway rakes per annum or 4 makes per month were required. But the accused officials allotted 10 rakes per month. An allotment of 10 kes per month means that the company must show production of about 24,706 Ton of iron per month of annual production of about 2,96,475 Ton. Even, as per forged ER 1 Forms submitted by the accused company, every "Priority C loading works out to 7 rakes per month. On the basis of allotment of 90 rakes 10 rakes per month) from June 2007 to March 2008, the company was able to transport more than 3.55 lakh ton of iron ore. The company produced 48,000 ton of iron in this period for which requirement of Iron ore was 76,800 ton only and for transporting the said quantity of iron ore, a maximum of 20 Railway rakes were required to be allotted. It was well within the knowledge of accused railway officials that by transporting 3.55 lakh ton of iron ore, the company could have manufactured 2.22 lakh ton of iron which was much beyond the installed capacity of 1 lakh ton.
It is alleged that the remaining iron ore (2.78 lakh appx.) as transported above, was used for export purpose. Railway had started charging higher rates for export bound consignments of iron ore after April, 2006 to earn more revenue and from April, 2007, 21% congestion charge was imposed on export bound consignments, which was enhanced to 35% from 01-10-07, 60% from 01-12-07 and 100% from 01-04-2008. (From 22-05-2008, a new commodity class was introduced for transportation of iron ore "For other than domestic consumption"). So M/s. Rashmi Metaliks Ltd. was shown undue favour and undue pecuniary advantage by the accused officials of Railway by allowing transportation of huge quantity of iron ore than the actual requirement under priority 'C' and facilitating the said company to export a huge quantity of iron ore from Haldia Port without making payment of congestion charge causing a huge wrongful loss to Railway with corresponding wrongful gain to the said company and other accused persons.
It has further revealed that Railway introduced a dual or differential Rly. freight to encourage domestic production of iron. This was introduced in April 2008 and came into force from May 2008. Railways is charging different rates for transportation of iron ore from May 2008. Under this dual rate policy, there is a concessional rate for domestic use of iron ore for production of iron in own plants. Regular or enhanced rate is charged by the Railways for transportation of iron ore for other use including export and trade of iron ore.
In this regard, Rate Circulars have been issued since FY 2008 by Railway Board incorporating freight rates and its associated conditions for iron ore consignment meant for "Domestic Use" and Other than domestic use. As mentioned above, the rail transport charges for iron ore consignment for domestic use was/is significantly cheaper than the same meant for "other than domestic use". When a transporter declares that the iron ore is meant for domestic consumption in their own factory, then much cheaper freight charges are admissible to the concerned party. The difference between domestic class freight and export class freight has reached nearly 100% from the beginning of F.Y. 2008-09. Because of this large freight difference, Rail way authorities have specified stringent regulations like submission of Affidavit and Monthly Excise Returns for admitting domestic class freight to a transporter. Only on the basis of these documents, a transporter car avail cheaper domestic freight rates. Once Iron ore is transported under such declaration, subsequent trading either in domestic market or international export is not permissible.
It is further alleged that this Company withdrew themselves from status of Programmed Consumers (Priority 'C') in May 2008 which was allowed by EDRM, Rly. Board, Kolkata w.e.f. 06.06.08, still they were allotted large number of rakes under Gr. D category from May 2008 onwards. It is revealed that M/s. Rashmi Metaliks was getting allotment of ten rakes per month from June-2007 to March-2008 under priority C but they were getting more rakes from April-2008 onwards under priority D. They were allotted as many as 35 rakes in June-2008, 30 rakes in Sept 2008, 38 rakes in Dec-2008, 35 rakes in Jan-2009, 37 rakes in May-2009, 34 rakes in June-2009, 39 rakes in July-2009 and 34 rakes in Sept-2010 under domestic category. It is alleged that undue favour was shown by the accused officials of Senior Divisional Operations Manager, SE Railway, Chakradharpur to M/s. Rashmi Metaliks in allotting more number of railway rakes for transportation of iron ore for domestic use. They were allotted 256 rakes in 2008-09, 285 rakes in 2009-10 and 229 rakes in 2010-11. In this way a total number of about 780 rakes were allotted to Rashmi Metaliks during April 2008 to March 2011. Such a large number of railway rakes under 'domestic use' were not required to be allotted by the officials of SE railway as installed capacity of iron production was about one lakh ton only. But this company declared its installed capacity as 0.35 million ton to the Railway. This was well within the knowledge of officials of SE railway as well as Executive Director, Rail movement Kolkata, This was duly intimated by the party to the railway authorities on 23.04.2007 in which it was submitted by them that they require 13/14 rakes per month. This is also evident from DO No. MGP 52/96/sponge iron Tfo/Corres dt. 30.04.07 written by the then Chief Operations Manager, SE railway, Gardenreach Kolkata to Executive Director, Rail Movement.
It is alleged that M/s. Rashmi Metaliks Pvt. Ltd. transported the following quantities of iron ore through rail transport under false declaration that the transported iron would be exclusively used for "Domestic Consumption at their manufacturing unit located at Gokulpur, West Bengal from May, 2008 to March, 2010
Duration
Chargeable Weight
From May-2008 to March,
8,72,031,95 tonnes
2009
April 2009 to March, 2010
9,67,581.15 Tonnes
It is further alleged that an overwhelming portion of the said iron ore, transported by M/s. Rashmi Metaliks Pvt. Ltd. under declaration of domestic consumption, had neither been used for "Domestic Production nor reflected in "Additional Accretion of Inventory" in their plant. The quantity of iron ore illegally exported or used by the said company for purposes "other than domestic use" is given in the table below:
Year Iron ore(Lump & Fine) taken from CKP on rail under declaration of Domestic Consumpti on (in tones) Total Iron ore consumed for manufacturi ng activity (in tones) as reflected in company’s own Financial Statements. Accretion to iron Ore inventory [ closing Balance Opening Balance of the year] As per Balance sheet (in tones) Amount of Freight Evasion Iron ore put to “other than domestic use” x Average annual freight differential May, 2008 - Marc h 2009 872,031.9 5 87,054.99 599,117,8 3 320,631,386. 88 April 2009 - Marc h 2010 967,581.1 5 124,314.77 800,314.0 2 417,563,839. 94 Total 1,839,613. 1 211,369.76 1,399,431. 85 738,195,226. 82 It is alleged that Rashmi Metaliks transported about 8.72 lakh ton of iron ore from May 2008 to March 2009 and about 9.67 lakh tonnes of iron ore from April 2009 to March 2010 through rail transport under declaration that the transported iron would be exclusively used for domestic consumption at their plant located at Gokulpur. But the same was not used for domestic use. As mentioned, there existed a huge difference between freight charges for iron ore consignment meant for domestic use and non-domestic use. It is disclosed that a major portion of iron ore transported by this company under declaration of domestic consumption was not used for domestic production, but for purposes other than domestic use. Enquiry conducted by Railway Vigilance has revealed that about 599117 83 ton out of total transported iron ore of 2031.95 ton was not consumed for domestic manufacturing during the period May, 2008 to March, 2009 me basis of freight differentials, the amount of 'freight evasion comes to Rs. 320631386.88 during this period. Similarly, 800314.02 ton out of total transported iron ore of 967581.15 ton was not consumed for domestic manufacturing during the period Apr 1, 2009 to March, 2010. The amount of freight evasion comes Rs. 417563839.94 during this period. So, the total amount of freight evasion by resorting to cheating and forgery by Rashmi Metaliks comes to Rs. 7381,95,226.82 during the period May, 2008 to March, 2010
It is further alleged that Rashmi Metaliks transported a quantity of 398712 MT of iron ore during the year 2010-2011 from the sum total of consignments transported under declaration of domestic use. This quantity was over and above the quantity of iron ore despatched by this company directly to Haldia Port by paying genuine higher freight charges applicable for export bound iron ore. By exporting 398712 MT of Iran ore which was transported under declaration of domestic use, Rashmi Metaliks cheated Railways, In connivance with the suspected officials of Railway and Central Excise, to the tune of Rs. 58,18,06,531.10 on account of evasion of freight. Thus, the total amount of freight evasion / cheating by Rashmi Metaliks comes to Rs. 1,32,00,01,758/- for the period May, 2008 to March, 2011. The amount of penalty for mis-declaration for the aforesaid 'freight evasion has been worked out as Rs. 528,00,07,032 by S.E Railway. Thus the total amount, accruable to Railway towards the evaded freight and penalty works out to Rs. 660,00,08,790/-. Accordingly S. E. Railway has issued a demand notice on 16-08-2011 to Rashmi Metaliks Ltd. to deposit said amount of six hundred sixty crores eight thousand seven hundred and ninety rupees.
It is alleged that M/s. Rashmi. Metaliks availed a huge number of railway rakes for iron ore transport for consumption at their manufacturing unit located at Gokulpur under 'domestic use 'at cheaper rate. They booked a small number of rakes directly to Haldia by paying actual export bound freight charges. They exported about 15.90 lakhs tons of iron ore from Haldia Port mainly to China during 2008-11, out of which they brought about 2.46 lakhs ton of iron ore only by rail and brought the remaining quantity of about 13.44 lakh tons by road. It is alleged that M/s. Rashmi Metaliks Ltd. was shown undue favour and undue pecuniary advantage by the accused officials of Railway by allowing transportation of huge quantity of iron ore than the actual requirement under domestic use' and facilitating the said company to export a huge quantity of iron ore from Haldia Port without making actual export bound freight charges causing a huge wrongful loss to Railway with corresponding wrongful gain to the said company and other accused persons. The accused officials of S. E. Railway, Chakradharpur Division allotted a huge number of railway rakes to the said company without making any query regarding installed capacity vis a vis. requirement of iron ore to produce finished iron equivalent to installed capacity and without consulting officials of Central Excise, Midnapore Division about the contract made with this company and to confirm production of iron. They also failed to get the monthly production certificates ER-1 confirmed from Range -II of Central Excise, Midnapore Division.
It is further alleged that officers of Range – II of Central Excise, Midnapore Division were also involved in issuing forged certificates to Rashmi Group on the basis of which allotment of a large number of railway rakes was taken by M/s Rashmi Metaliks Ltd. under 'Priority C' / "Domestic use category. It is alleged that it was well within the knowledge of concerned accused officials of Central Excise that different assessee were obtaining production certificates from Central Excise for submitting the same to railways for allotment of railway rakes for transportation of iron ore for domestic use but Rashmi Metaliks Ltd were not obtaining such certificates. No query was made by the officials of Central Excise, either from the party or from the Railways as to how such a huge quantity of iron ore was transported for domestic consumption through way rakes without the issuance of monthly production certificates by Central Excise Dept. It was known to them as to what was the installed capacity of this group, what was the production figure, how much iron ore was transported, how much iron ore was used for domestic consumption and how much iron ore was exported. The figures of raw-material stock flow data of iron-ore on trading account as well as manufacturing account were submitted by the company to the Central Excise Department in ER-6 returns. e concerned officials of Central Excise Dept, were knowing as to how much iron-ore was brought into the factory by the company and how much was used for the purpose of manufacturing. The quantity of finished goods was also reflected in ER-1 forms. Amount of raw-material consumed is also reflected in ER-1 returns These figures were also known to the concerned officials of Central Excise through various documents maintained by the company like goods removal register, raw-material register etc. But no query was made by the officials of Central Excise from the company why such huge quantity of iron-ore was transported through rail transport which was much beyond the requirement as per installed capacity and what was done with the remaining quantity of iron-ore not used for domestic consumption. Other companies were obtaining production certificates from the Central Excise Dept. for submitting the same to the railway for allotment of rakes. The accused officials of Central Excise did not ascertain from Railway how Rashmi Metaliks Ltd. was getting allotment of huge railway rakes for transportation of iron-ore for domestic use without monthly production certificates/ER-1 issued by the department. Due to this undue favour, Rashmi Metaliks Ltd. was able to commit the fraud for such a long period.
Thus, the above accused persons namely Shri Ramesh Saran Rai, the then Dy. COM (Project & Planning), S. E. Railway, Gardenreach, Kolkata, unknown officials of Railway Department; unknown officials of Central Excise, Midnapur Division, Range-II, West Bengal in criminal conspiracy with M/s. Rashmi Metaliks Pvt. Ltd. and it's Managing Director Shri Sanjay Kumar Patwari, Directors Shri Sajjan Kumar Patwari, Smt Bhagabati Devi Patwari, Shri Sanjib Kumar Patwari, Shri Surendra Jha, Addl. Director Shri Sashi Kumar and Company Secretary Shri A. K. Verma and other unknown persons and by their above acts of criminal misconduct, omission and commission, caused a wrongful loss to the Railway to the tune of Rs. 660 crores approx with corresponding wrongful gain to themselves and Mis. Rashmi Metaliks Ltd.
Since, the above mentioned facts reveal commission of cognizable offence u/s 1208, 420, 467, 468, 471, 4771A IPC and Section 13(2) r/w. 13(1)(d) of the PC Act 1988, a Regular Case is registered against Shri Ramesh Saran Rai, the then Dy. COM (Project & Planning), S. E. Railway, Gardenreach, Kolkata, unknown officials of Railway Department, unknown officials of Central Excise. Midnapur Division, Range-II, West Bengal, M/s. Rashmi Metaliks Pvt. Ltd. and it's Managing Director Shri Sanjay Kumar Patwari, Directors Shri Sajjan Kumar Patwari, Smt. Bhagabati Devi Patwari, Shri Sanjib Kumar Patwari, Shri Surendra Jha, Addl. Director Shri Sashi Kumar and Company Secretary Shri A. K. Verma and other unknown persons and endorsed to Shri Arnab Ghosh, Addl. SP, CBI, ACB, Kolkata for investigation."
16. The subsequent FIR RC 15/2014 dated 14.06.2014 contents the allegation as follows:
"A reliable source information was received by the office of SP/CBI/ACB/Kolkata and after due verification, it was revealed that the aforesaid Directors of M/s. Rashmi Metaliks Ltd., having its corporate office at Premlata Building, 6th Floor, 39, Shakespeare Sarani, Kolkata - 700 017 and plant at Gokulpur, PO Shyamraipur, Paschim Medinipur 721 301, West Bengal entered into a criminal conspiracy with unknown officials of South Eastern Railway and in pursuance to said criminal conspiracy evaded freight payable to South Eastern Railway by showing excess use of iron ore for domestic purpose than actually used during the financial year 2011-2012 to the tune of Rs.37.09 crores (approx.)
Information further revealed, that the suspect company M/s Rashmi Metaliks had put the above said Iron Ore for "other than domestic use" by fraudulently obtaining lower tariff and by making false / misleading/ inaccurate declaration of its purported end use to Railway Authorities at the time of loading as well at the time of unloading in the form of Affidavits / Indemnity and thereby evaded payment of freight charges at non domestic rates.................
.............
.............
The average distance was calculated to be (total distance / number of rakes) = 46528/ 156 298.25. It was revealed during verification that the Railway Circular 36/2009 Addendum No.14 dated 01.03.2011 was applicable during the relevant period. The base freight applicable for the distance between 291-300 km was Rs. 364.50/ton. According to the said rate circular/addendum no. 14 the differential freight to be paid for transportation of iron ore for other than domestic purpose would be as follows –
90% of Base Freight + 1600= 90% X Rs. 364.50+Rs. -1600= Rs. 1928.05
Thus, the average freight evaded i.e. total loss caused to the Indian Railways in freight charges would be as follows=(differential freight X Diversion)=1,92,399.36MT X Rs. 1928.05=Rs. 370,955,586.48"
17. In a plain reading of the two FIRs it appears to me that in the FIR (RC-02/2012), it was alleged that the present petitioner as entered into a criminal conspiracy with same Officers of Eastern Railway and thereby for the period of 2007 to 2010 transported a huge quantity of Iron ore in the concessional charge with a declaration that the said Iron ore would be used in domestic purpose but the said Iron ores were actually used for “other than domestic purpose”. The Subsequent FIR (RC-15/2014) also alleged same offences for the period of 2011 -2012.
18. It is admitted by the CBI that the documents collected and seized during the investigation of RC 02 of 2012 were used for filing charge sheet in RC 15 of 2014. Mr. Maity contended that the facts of the FIRs may appears to be similar but the issues involved in both the FIRs are distinct and separate; it is further contention of the CBI that the material collected during the first FIR was used in the second FIR but that does not itself make both the FIRs similar.
19. Let me consider whether the subsequent FIR being RC 15 of 2014 dated 14.06.2014 was filed by the CBI against the present petitioner is violative under principle of law enumerated by the Hon’ble Apex Court in TT Anthony (supra) as well as Amit Sha (Supra).
In the case of TT Anthony (Supra) in the State of Kerala police open filing had taken place on mob, for which there were 05 causalities and huge injury of private persons including few Police Personnel; on the same incident too separate police cases were registered by the police against some party workers of a political party on 25.11.1994. In the year 1996, in the Assembly Election of the State of Kerala, headed by CPI(M) formed Government; on 27.05.1997 a commission submitted a report that the police firing on 25.11.1994. was not justifiable action, thus former Minister including the TT Anthony, former Deputy Collector and others were responsible for the police firing. The report was accepted by the Government and on the basis of the said report another police case was lodged against TT Anthony and Ors on 14.07.1997. A quashing petition was filed before the Learned Single Judge, of Kerala High Court, who in-stead of quashing the FIR directed the case being investigated by the CBI, against which appeal is preferred before the Division Bench, the Division Bench quashed the subsequent FIR and also directed a fresh investigation by the State Police, against the order of the Division Bench the matter went up to the Hon’ble Apex Court. The Hon’ble Apex Court has held that:
"15. On these contentions, four points arise for determination:
(i) whether registration of a fresh case, Crime No. 268 of 1997, Kuthuparamba Police Station on the basis of the letter of the DGP dated 2-7-1997 which is in the nature of the second FIR under Section 154 CrPC, is valid and it can form the basis of a fresh investigation;
(ii) whether the appellants in Appeals Nos. 689 and 4066 of 2001 [arising out of SLPs (Crl.) Nos. 1522 and 8840 of 2000] and the respondent in Appeals Nos. 690- 91 of 2001 [arising out of SLPs (Crl.) Nos. 2724-25 of 2000] have otherwise made out a case for quashing of proceedings in Crime No. 268 of 1997, Kuthuparamba Police Station;
(iii) what is the effect of the report of Shri K. Padmanabhan Commission of Inquiry; and
(iv) whether the facts and the circumstances of the case justify a fresh investigation by CBI.
16. As Points (1) and (ii) are interconnected, it will be convenient to deal with them together. Inasmuch as the germane question relates to registration of an FIR, we may usefully refer to Section 154 of the Code of Criminal Procedure, 1973 (CrPC) which reads as under:
154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
17. Sub-section (1) of Section 154 CrPC contains four mandates to an officer in charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub section (1) of Section 157 CrPC which provides that immediately on receipt of the information the officer in charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by CrPC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence.
18. An information given under sub-section (1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/Statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H- the real offender who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused."
20. In the same principle, in Amit Sha (Supra) the Hon’ble Apex Court has held that :
"36. Now, let us consider the legal aspects raised by the petitioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by order dated 12-1-2010 till filing of t the charge-sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheer for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried "in accordance with law"
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony, this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as under: (SCC pp. 196-97 & 200)
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 CrPC, as the case may be, and forward. his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; 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 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. 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. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR 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 Cr.P.C.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 under way 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 CrPC or under Articles 226/227 of the Constitution."
The abovereferred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
58.1. This Court accepting the plea of CBI in Narmada Bail that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed CBI to "take over" the investigation and did not grant the relief prayed for i.e. registration of a fresh FIR. Accordingly, filing of a fresh FIR by CBI is contrary to various decisions of this Court.
58.2. The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.
58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. 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.
58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the 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 Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. 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, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
58.5 The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR."
21. The Law declared by the Hon’ble Apex Court in TT Anthony and Amit Shah is very distinct and clear. It is the scheme of the Code of Criminal Procedure that the investigation of a cognizable offence commenced after filing of information to the OC of a Police station according to u/s 154 of Cr.P.C. The investigation of the police would be guided u/s 156 of 157 of the code. On completion of investigation the investigating officer has to form an opinion u/s 169 or 170 and shall forward to the report of the Magistrate concern u/s 173 of the Code. It is not an embargo for re-investigation by the investigating agency even after filing of such report, if it comes to his knowledge regarding the possession of further information or materials in connection of the same offence; there is no need to register a fresh FIR, the investigating agency is empowered to make further investigation normally with the leave of the court, and where during investigation, the investigating agency collected further evidence, oral or documentary he has to forward the same with one or more further reports according to the provision of Sub-Section 8 of Section 173 of the code. So the scheme of C.P.C. makes it clear that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirement of Section 154 of the Code. Thus there cannot be a second FIR and, consequently it is not required for fresh investigation in 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. In this particular case it appears that the CBI has initially filed the FIR being RC 02 of 2012 dated 10.01.2012 alleging commission of offences of cheating and criminal conspiracy by the present petitioner with other officers of Railways who alleged to have evaded actual charges in violation of Rates Circular of Ministry of Railways covering for the period of 2006-2011. Subsequently FIR No. RC-15 of 2014 dated 14.06.2014 was filed wherein same allegations were levelled against the petitioners for the financial year 2011 to 2012. The basic allegation against the present petitioner is that they transported huge Iron ore in a concessional rate with a false declaration of “Domestic Use”. I find nothing new in the allegations of subsequent FIR being RC 15 of 2014 dated 14.06.2014 except the money involved and period of alleged commission of offence in the 1st FIR. It further appears to me that the CBI themselves used the documents of first FIR in the subsequent FIR, which proves that they are only filing second FIR for new financial year.
23. According to the observation of Hon’ble Apex Court in TT Anthony and Amit Shah (supra), the subsequent FIR being (RC No. 15 of 2014) is a second FIR of the same allegation against the present petitioners made in RC- 02/2012 dated 10.01.2012 and it is not at all maintainable.
24. The judgment law placed by the CBI for maintaining criminal proceeding during the pendency of the civil proceeding are all settled principles and are not denied by the petitioners. This principle is actually not dealt with this court.
25. Considering the entire materials the instant criminal revision got merit and it is liable to allowed.
26. CRR is allowed. The FIR being RC No. 010/ 2014 A/ 0015 dated 14th June 2014 wherein charge sheet dated 31.03.2016 was filed before the Learned MM Magistrate 21st Court, Bichar Bhaban Calcutta including subsequent order taking cognizance by the Learned Magistrate against the present petitioner is hereby quashed.
27. I make it clear that the order passed by this court shall not forbid the CBI to submit a supplementary or additional charge sheet before the Learned Court in accordance with the law, in the GR Case initiate on the basis of RC 0102012A/002 dated 10.01.2012 in respect of the allegations made in the subsequent FIR.
28. CRR is disposed of.
29. Connected CRAN applications if pending are also disposed of.
30. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.
