Karnataka High Court
H. Basavana Gouda @ Basavaraj Gouda vs The State Of Karnataka on 12 January, 2021
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.101092/2015
BETWEEN:
1. H. BASAVANA GOUDA @ BASAVARAJ GOUDA
AGE: 43 YEARS, OCC. AGRICULTURE
R/O M.G. GONAHALL VILLAGE, TQ & DIST. BALLARI
2. ANNAPOORNA @ ANNAPOORANAMMA
D/O HANUMAN GOUDA, AGE: 37 YEARS,
OCC. HOUSE HOLD, R/O M GONAHALL VILLAGE
TQ & DIST. BALLARI.
....PETITIONERS
(BY SRI.S M.KALWAD, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP. BY THE BRUCE PETH P S
THROUGH ADDITIONAL SPP,
HIGH COURT KARNATAKA, DHARWAD.
2. THE TAHASILDAR
THE OFFICE OF TAHASILDAR
BALLARI, DIST. BALLARI
.....RESPONDENTS
(BY SRI.VINAYAK KULKARNI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE FIR REGISTERED BY THE
BRUCEPETH P.S. IN CRIME NO.82/2015 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 420 & 511 R/W 34 OF IPC,
PENDING ON THE FILE OF I-ADDL. CIVIL JUDGE & JMFC, BALLARI,
INSOFAR AS PETITIONERS ARE CONCERNED.
2
THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Code of Criminal Procedure (for brevity "Cr.P.C.") praying to quash the FIR registered by the Bruce Peth P.S. in Crime No.82/2015 for the offence punishable under Sections 420 & 511 r/w 34 of IPC, pending on the file of I Addl. Civil Judge & JMFC, Bellary, insofar as petitioners are concerned.
2. Brief facts of the care are:
It is stated that petitioners are brother and sister respectively who are arrayed as accused Nos.2 and 4 and accused Nos.1 and 3 are their father and brother respectively in the criminal case registered against them by the respondent No.2-Tahsildar, who lodged the FIR dated 08.05.2015 (Annexure-M). Upon lodging the First Information Statement (for short 'FIS') the FIR came to be registered as Crime No.82/2015, of Bruce Peth P.S., against the petitioners and other accused for the offence punishable under Sections 420 and 511 R/w 34 of IPC. The petitioners and other 3 accused persons have filed Form No.7A in respect of land Sy.No.256 measuring 2 acres 54 cents, Sy.No.257 measuring 11 acres 32 cents and Sy.No.258 measuring 3 acres 19 cents situated at M.Gonal village of Ballari Taluk. Therefore, it is accusation made against these petitioners and other accused that they created Form No.7A by committing offence of forgery so as to get an order of granting occupancy rights by the Assistant Commissioner as per the provisions of the Karnataka Land Reforms Act. But the said applications were not filed. Hence, with the accusation they forged Form No.7A prepared and submitted before the Assistant Commissioner and tried to get an order of occupancy rights. Therefore, with these allegations, the respondent No.2 has filed his FIS before the police, which is culminated into filing of FIR.
3. Learned counsel for the petitioners submitted that filing of the FIS consequently upon registration of FIR in Crime No.82/2015 which is gross abuse of process of law as the respondent No.2 has already filed the FIS on earlier dated 02.07.2009, which is culminated into filing registration of Crime No.120/2009 of Bruce Peth P.S., against the accused H.Hanuman 4 Gouda S/o: H.Basavana Gouda, who is father of petitioners herein. Upon investigation conducted in the said FIR No.120/2009, the Investigating Officer had started investigation and filed 'B' final report. Therefore, submitted that FIR No.120/2009 of Bruce Peth P.S., which is based on the FIS dated 02.07.2009, has attained its finality insofar as investigation is concerned by filing 'B' final report. Therefore, submitted that the offence against the accused No.1 was not proved during the course of investigation and accordingly 'B' final report is filed. However, on the same set of accusation the respondent No.2 has once again filed FIS on 08.05.2015 before the very same police against accused No.1 and petitioners which has resulted in registering of FIR No.82/2015 and submitted that when the accusation made in the second FIS and Crime No.82/2015 is also same as that of FIS and FIR No.120/2009 and substance of accusation is also same and accused are also same so also the facts are same. Hence submitted on these grounds of the sameness, the second FIR is not maintainable. Therefore, registration of second FIR is nothing but gross abuse of process of law. Accordingly, prays to quash the entire proceedings in respect of Crime No.82/2015 of Bruce Peth P.S. In respect of his arguments the learned counsel 5 places reliance on the judgment of Apex Court in the case of Anju Chaudhary Vs. State of Uttar Pradesh and Another reported in (2013) 6 SCC 384.
4. On the other hand, learned Addl. Government Advocate appearing for respondent-State, submitted that upon perusing the two FIS statements given on 02.07.2009 and 08.05.2015 are different and accused are different except the accused No.1. Therefore, the respondent No.2 has rightly lodged second FIR before the police, which is not amounting to abuse of process of law. Therefore submitted that there is no merit involved in the petition and submitted that the facts are different and in the second FIR three more persons are made accused maintaining the accused No.1 who is also accused in the first FIR. Hence, prays to dismiss the petition as being devoid of merits.
5. It is not disputed fact that respondent No.2 has lodged FIS on 02.07.2009 for the first time before the police against the accused namely H.Hanauman Gouda S/o: Basavan Gouda, which is registered FIR in Crime No.120/2009. Investigation is conducted in the said crime which resulted into filing of 'B' final report and copy 6 of said 'B' final report is made available as Annexure-J. It is also not disputed fact that respondent No.2 has lodged the second FIS on 08.05.2015 which resulted into registration of FIR in Crime No. 82/2015. Upon considering these two FIR's in Crime No.120/2009 and 82/2015 of Bruce Peth P.S., the substance of allegation is made in both the FIS are one and same. The allegation of respondent No.2 is that the petitioners and other accused have filed forged Form No.7A before the Assistant Commissioner through Tahsildar for seeking grant of occupancy rights as per provisions of Karnataka Land Reforms Act, but in reality they have not filed said Form No.7A. Therefore, by filing the said forged Form No.7A, dragged the Assistant Commissioner to conduct the proceedings for grant of occupancy rights, even though, they have not filed Form No.7A. The nature of allegation in both the FIS and substance are one and same in both the FIR and also the facts are similar that forged Form No.7A is filed so far as grant of occupancy rights is concerned for the lands bearing Sy.Nos.256, 257 and 258 stated supra. In both the FIR's accusation is made in respect of the very same lands by mentioning survey numbers. Under these circumstances, where the facts are similar, offences are not 7 distinct, substance of accusation are made in both the FIR's are also same, therefore, factor of sameness is to be found out to say that whether the second FIR is maintainable. In this regard, the learned counsel for the petitioners has rightly placed reliance on the judgment of the Apex Court in Anju's case stated supra held at paragraph Nos.14 and 25 were pleased to observe as follows;
14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced 8 from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. [Ref. Rita Nag v. State of West Bengal[(2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali of the same date).
25. The First Information Report is a very important document, besides that it sets the 9 machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of sameness to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors.
[(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc.
6. Therefore, on the principles of law laid down by the Apex Court stated supra and the present case is considered in order 10 to find out the sameness involved in both the FIRs. In FIR No.120/2009, the allegation is that the accused No.1 had filed forged Form No.7A in respect of land survey Nos.256, 257 and 258 stated above seeking for grant of occupancy rights and in the second FIR No.82/2015 also the same accusation is made in respect of the very same land seeking for grant of occupancy rights but the accused No.1 in both the FIRs is same. The only difference between the two FIRs is that in the second FIR three more persons were added as other accused who are none other than the children of accused H.Haunmangouda S/o: Basavanagouda (who is accused No.1 in both FIRs). Upon considering the nature of accusation, the substance of offence alleged in the both the FIRs are one and the same. The facts of allegations made in the FIRs are also one and same and they are not found to be distinct to each other. Therefore, when the present case is decided with the principles of law laid down by the Apex Court stated supra, the second FIR in Crime No.82/2015 is found to be abuse of process of law and in the first FIR No.120/2009 the Investigating Officer has started investigation and collected all the evidences during the course of investigation and filed 'B' final report, which is made available as 11 Annexure-J. Hence, when full fledged investigation was conducted which is culminated into filing of 'B' final report and on the very same set of accusation, substance of offences between the same accused registering the second FIR is not permissible in law. Therefore, in this context the proceedings in pursuance to FIR in Crime No.82/2015 is liable to be quashed.
7. In the present case, if the second respondent really wants to proceed with the case after filing 'B' final report by the Investigating Officer in the first FIR then the second respondent ought to have filed protest petition as per the procedures laid down in the Cr.P.C. by making necessary application and also for adding the persons as accused then had to challenge the said 'B' final report and proceed with the case before the competent Court of law. But without doing so, the second respondent-Tahsildar had once again filed second FIR on 08.05.2015 after lapse of nearly six years from the date of lodging of first FIR. Under these circumstances, the second FIR filed by the respondent No.2 in Crime No.82/2015 is not maintainable in law. Therefore, all the further proceedings in pursuance to FIR in Crime No.82/2015 of 12 Bruce Peth P.S., is liable to be quashed. Accordingly, the petition is liable to be allowed. Hence, I proceed to pass the following:
ORDER The petition is hereby allowed.
All further proceedings of First Information Statement dated
08.05.2015, which is registered in FIR of Bruce Peth P.S. in Crime No.82/2015 for the offence punishable under Sections 420 and 511 r/w 34 of IPC, pending on the file of the I Addl. Civil Judge & JMFC Court, Ballari, insofar as petitioners are concerned is hereby quashed.
Sd/-
JUDGE RM