Rajasthan High Court - Jaipur
Lalita Prasad Sharma vs State Of Rajasthan Through P P on 9 November, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER Lalita Prasad Sharma Vs. State of Raj. S. B. Cr. MISC. PETITION NO. 2741/2013. under Section 482 Cr.P.C. against the order dated 10.6.2013 passed by Addl. Sessions Judge No.7, Jaipur Metropolitan in Cr. Revision No. 172/2012. Date of Order : 9th November, 2013. PRESENT HON'BLE MRS. JUSTICE NISHA GUPTA Mr Kapil Gupta, for petitioner. Mr Laxman Meena, Public Prosecutor. BY THE COURT
This Misc. petition under Section 482 Cr.P.C. has been filed against the order dated 28.8.2012 passed by Addl. Chief Judicial Magistate No.10, Jaipur Metropolitan, Jaipur in Cr. Case No. 1118/2012 whereby cognizance has been taken against the present petitioner for the offence under Sections 420, 471 and 120B IPC.
2. The short facts of case giving rise to this petition are that complainant Bhagwan Sahai Saini, Tehsildar Amer Distt. Jaipur lodged a report at Police Station Amer, Distt. Jaipur on 12.1.2011 alleging therein that he received an application by applicant Sandeep S/o Moti Lal Saravgi with four documents along with application and on the application Patwari, Amer was directed for enquiry and submit the report for opening mutation in the name of Sandeep. After enquiry and producing the relevant documents, the mutation was opened thereafter, he was called for investigation in FIR No. 199/2010 registered at Police Station, Banipark, it came to the notice of the present complainant Bhagwan Sahai that the documents made available by the petitioner Sandeep for opening mutation were forged and fague documents and on the basis of such documents, public servant has been cheated and mutation have get to be opened illegally. On this report, a FIR 26/2011 came to be registered under Section 420, 467, 468, 471, 120-B IPC at Police Station Amer, Jaipur and after conclusion of investigation, charge sheet has been filed against the present petitioner and cognizance has been taken mechanically against the present petitioner on printed performa. The present petitioner assailed the order by way of revision which was rejected.
3. The only contention of the petitioner is that earlier on same allegations, FIR No.199/2010 was registered and afrer investigation charge-sheet has been has been filed and present petitioner is facing trial for the offence under Sections 420, 467 and 668 and 471 IPC, hence this second FIR and second criminal proceedings could not be continued and it is abuse of the process. Admittedly, present complainant was witness in FIR No. 199/2010 and on the same allegations, earlier FIR was lodged and reliance has been placed on Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation, JT 2013 (4) SC 333, the second FIR is impermissible:
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.
4. Further reliance has been placed on T.T. Antony Vs. State of Kerala & ors., (2001) 6 SCC 181 wherein it was held:
The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. 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 evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. 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 Cr.P.C.
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.
5. Reliance has also been placed on Babubhai Vs. State of Gujarat & ors., (2010) 12 SCC 254 wherein it was held:
Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.
6. The learned Public Prosecutor has not opposed the factual scenario of the case.
7. Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the impugned FIR as well as earlier FIR No. 199/2010.
8. A bare perusal of both the FIRs show that both the FIRs contain same allegations as regards to forgery of same documents and in FIR 199/2010 after investigation, the present petitioner is facing trial hence looking to the law laid down (supra), this second prosecution is abuse of process of the court and liable to be quashed.
Consequently, the petition is allowed. The second FIR No.26/2011 registered at Police Station Amer, Jaipur is quashed.
(NISHA GUPTA),J.
Gandhi/ 38 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Brij Mohan(Sr. P.A