Gauhati High Court
Page No.# 1/8 vs The Central Bureau Of Investigation on 13 June, 2025
Page No.# 1/8
GAHC010114172025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./620/2025
AVINASH BHARTIA AND ANR
S/O SRI RAMAVATAR BHARTIA
R/O FLAT NO. 9A, BLOCK-C,
SIGNATURE ESTATES, OPPOSITE DGP OFFICE,
B.K. KAKATI ROAD, ULUBARI, P.O. ULUBARI, P.S.PALTAN BAZAR,
GUWAHATI, ASSAM, PIN-781007
2: SRI PAWAN KUMAR BHARTIA
S/O SRI RAMAVTAR BHARTIA
R/O FLAT NO. 9A
BLOCK-C
SIGNATURE ESTATES
OPPOSITE D.G.P. OFFICE
B.K.KAKATI ROAD
ULUBARI
P.O. ULUBARI
P.S. PALTAN BAZAR
GUWAHATI
ASSAM
78100
VERSUS
THE CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY THE SPECIAL PP, CBI
Advocate for the Petitioner : MR. D SAIKIA, MR W R MEDHI,MR P TALUKDAR,A
BARTHAKUR,MS. PADMINI BARUA,MS. RUKMINI BARUA
Advocate for the Respondent : SC, CBI,
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BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
13.06.2025
1. Heard learned Senior advocate Mr. D. Saikia for the petitioners Avinash
Bhartia and Pawan Kumar Bhartia, who have filed this application under Section
528 of BNSS, 2023 read with Article 227 of the Constitution of India with prayer
for quashing the FIR and all proceedings emanating therefrom including charge
sheet dated 30.09.2024 submitted with respect to CBI Case No.
RC2172024A0003.
2. It is submitted that this is the third FIR relating to the same cause of action
of the second FIR No. RC2172023A0011 dated 24.07.2023 filed by the CBI
against the petitioners. It is submitted that a series of work were assigned to
several persons including the petitioners and certain unknown persons with
allegations of having dealt in illegal gratification. It is submitted that the third
FIR is a replica of the second FIR. It is also submitted on behalf of the
petitioners that there cannot be multiple trials on the basis of the same cause of
action. The petitioners are willing to face the trial. It is submitted that the
allegation was brought up against the petitioners in the first FIR and specifically
the second FIR reveals the name of the petitioner as one of the accused. In this
manner, a slew of FIRs have been registered against the petitioners and other
accused relating to the same cause of action.
3. The third FIR starts with the prelude of the second FIR with allegations that
a regular case was registered in CBI on 24.07.2023 vide No. RC2172023A0011
against Sri Santosh Kumar, the then SSE/JRDM, Silchar, Sri Ambika Saw, Smt.
Page No.# 3/8
Puspa Kumari of M/S Bharatia Infra Projects Limited and unknown persons
of M/S Bharatiya Infra Projects Limited and unknown others under section 120-B
of IPC read with Section 7, 9, 10 and 12 of the PC Act, 1988.
4. During investigation it was unearthed that M/S Bharatia Infra Projects
Limited has procured certain work orders from North Frontier Railways at
Jiribam-Imphal during 2016-2022. This period of works/projects has already
been included in the second FIR. It is submitted that the petitioners are
directors of M/S Bharatiya Infra Projects Limited, a construction and
infrastructure company. It is alleged that during investigation, while conducting
search and seizure in the official premises of M/S Bharatiya Infra Projects
Limited at Guwahati, it was unearthed that several public servants, railway
officials, who were also with the projects of the petitioners’ company have
received gratification in cash as well as in accounts of the relatives during the
period ranging from 01.05.2016 up to 31.07.2023 to the tune of Rs.60 Crores. A
list of officials, relatives of the accused and the projects have been included in
the FIR alleged to be the third FIR and certain bank accounts have been
included which reflects transactions made in a clandestine manner to the
accounts of the relatives of the accused. The petitioners’ company has also been
alleged to be the accused in the FIR alleged to be the third FIR. It is submitted
that a cursory glance of the second FIR also reflects that the third FIR is a copy
of the second FIR relating to the same cause of action spanning within the
same period of time from 2016 up to 2023.
5. Rather the second FIR is more inclusive. The third FIR reflects six projects
whereas the FIR alleged to be the second FIR clearly reveals that the
petitioners’ company M/S Bharatiya Infra Projects Limited was involved in
construction of maintenance of railways infrastructure, including tracks, bridges,
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tunnels and stations and were awarded 106 contracts for construction of new
lines and upgradation of the existing lines in the North East Region from 2010
till date which implies that the period was from 2010 till the date of lodgement
of the FIR i.e. 24.07.2023.
6. The learned Senior Counsel for the petitioners has submitted that the
argument of the learned Standing Counsel CBI that different expressions of
interests are different contracts and different agreements and separate FIR has
to be lodged when illegality and fraudulent activity is detected in the
agreements and the contracts cannot be accepted.
7. It is submitted by the learned counsel for the CBI that various work orders
were issued in favour of the petitioners arising out of several expressions of
interests and agreements. There is no bar to call for two different contracts and
different agreements of tender. The FIRs alleged to be the first FIR, the second
FIR and the third FIR pertain to different periods and different agreements and
separate work orders and contracts which cannot be merged into one offence.
The petitioners’ submission that supplementary charge sheet can be submitted
in connection with the FIR alleged to be the first FIR cannot be accepted.
8. It is submitted that it is apparent from the petition that the work orders at
Sl. No. 1 to 12 at page 62 of the petition, Sl. No. 10 to 13 at page 93 of the
petition and the work orders reflected in the CBI charge sheet No. 22/2024 are
separate work orders and thereby the CBI had no other option but to lodge
separate FIR. The CBI Charge Sheet No. 22/2024 pertains to the CBI Case No.
RC21720724A0003 which is the alleged third FIR.
9. I have considered the submissions at the bar with circumspection.
10. If the entire allegation is summarised it is basically regarding the gratification
received by several railway officials and their family members and the payment
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of gratification by the petitioners relating to certain contracts or work orders for
construction of railway infrastructure projects.
11. In reply, learned Senior counsel for the petitioners has submitted that the
CBI has failed to affirm that six contract works which have come under the
scanner are not included in the total 106 contract works as alleged in the FIR
alleged to be the second FIR.
12. I have relied on the decision of the Hon’ble Supreme Court in Amitbhai Anil
Chandra Shah vs. Central Bureau of Investigation and Another reported in
(2013) 6 SCC 348 wherein it has been observed that:-
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. Anthony (supra), 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 paragraph Nos. 19, 20 and 27
of that judgment are relevant which read as under:
” 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
Page No.# 6/8the 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 CrPC.”
“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)
Page No.# 7/8has 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.”
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 evidence collected, Investigating Officer has to
form an opinion under Section 169 or 170 of the Code and forward his
report to the concerned Magistrate 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. ”
12. I find force in the argument of the learned Senior Counsel for the petitioners.
At this juncture it cannot be conclusively decided if this FIR can be segregated
as the third FIR or merged with first FIR which initially brought allegations of
illegality in procurement of tender works and illegal gratification being paid to
several railway officials by paying gratification through the bank accounts of
their family members and relatives. Entire case has to be scrutinised even to
arrive at a conclusion that the present FIR alleged to be the third FIR arises out
of the same cause of action relating to the same transaction or transactions.
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13. However, there appears to be a prima facie case to grant interim stay, at
least till the next date of listing.
14. Learned Standing Counsel, CBI Ms. M. Kumari has prayed for time to submit
certain authorities to substantiate her cause.
15. List this matter 20.06.2025
16.Till then, no coercive action to be taken against the petitioners and further
proceedings of CBI Case No. RC2172024A0003 dated 17.01.2024 is stayed till
the next date of listing i.e. 20.06.2025.
JUDGE
Comparing Assistant