Gujarat High Court
Sobharajsinh Madhavsinh Sindha vs State Of Gujarat on 5 February, 2025
NEUTRAL CITATION
R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025
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Reserved On : 10/01/2025
Pronounced On : 05/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20902 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 19771 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 333 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 360 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==========================================================
Approved for Reporting Yes No ========================================================== SOBHARAJSINH MADHAVSINH SINDHA Versus STATE OF GUJARAT & ANR.
========================================================== Appearance:
MR PC KAVINA, SENIOR ADVOCATE WITH MR MAULIK NANAVATI WITH MR MM BEG(8096) for the Applicant(s) No. 1 MR ASHISH DAGLI, Advocate for the Applicant(s) No. 1 MS TRUSHA PATEL, SENIOR ADVOCATE WITH MR BHAVESH BABARIYA(6788) for the Respondent(s) No. 2 MR HIMANSHU K PATEL ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA CAV COMMON JUDGMENT [1] Since all the matters having almost similar facts and Page 1 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined common questions of law, therefore, at the request of learned advocates appearing for the respective parties, are taken up for final hearing together. Hence, Rule returnable forthwith. Learned advocate Mr. Bhavesh Babariya waives service of notice of Rule for the private respondent and learned A.P.P. Mr. Himanshu K. Patel waives service of notice of Rule for the respondent - State of Gujarat.
[2] For the sake of convenience, R/ Criminal Miscellaneous Application No.19771 of 2021 is treated as the lead matter.
[3] By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the applicants - original accused persons have approached this Court for quashing and setting aside First Information Report being C.R. No.11197005211511 of 2011 registered with the Vadodara Taluka Police Station District : Vadodara Rural on 14 th October 2021 for the offence punishable under Sections 3, 4(1), 4(2), 4(3) of the Gujarat Land Grabbing (Prohibition) Act, 2020 (for short, "the Land Grabbing Act") and Section 506(2) of the Indian Penal Code.Page 2 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [4] For the sake of convenience, free translation of the impugned F.I.R. is reproduced hereinbelow:
"The accused persons had, in collusion with one another, despite having knowledge that the land bearing block No.295, old survey No.328, admeasuring about 8195 Sq.M., situated in the outskirts of Sevasi village is owned by Akota Branch of Andhra Bank, currently Union Bank of India since 2006, and with an intention to grab the said land, executed a forged agreement of Rameshbhai Dahyabhai Patel for handing over the possession of the land mortgaged with the bank in favour of Sanjaysinh Janaksinh Mahida and a forged power of attorney in favour of Shobhrajsinh Madhavsinh Sindha and that on the basis of the said power of attorney, Shobhrajsinh Sindha filed a case under the Tenancy Act before the Agricultural Tribunal and that Sanjaysinh Mahida had erected a board displaying that he holds the title and share in the said land and constructed a pucca room and kept Vikrambhai Devabhai Bharvad and other ten to twelve Bharvads present to occupy the said land and Vikrambhai Bharvad and other Bharvads accompanying him threatened Girishbhai Jayantibhai Patel to kill him and occupied and grabbed the said land and thereby, they had committed an offence.Page 3 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined My name is Kuldeepisinh Ramanlal Vaghela, age
- 40 years, occupation - service, R/o C/22, Jay Chamunda Society, opp. Jhavernagar, Vaghodiya Road, Vadodara City, Mob. No.9998005480.
Appearing in person, I declare and dictate the facts of my complaint that, I reside at the above mentioned address with my family and work as a Credit Manager in Akota Branch of Andhra Bank, currently Union Bank of India since 11/10/2021.
As the land bearing block No.295, old survey No.328, admeasuring about 8195 Sq.M. situated in the outskirts of Sevasi village is owned by our bank and it has been illegally occupied, the previous Manager Shri Bhanuprasad Singh, had submitted an application to the Office of the Collector, Vadodara on behalf of the bank to take action in this regard under the Land Grabbing Act. In connection with the said application, the Collector passed an order vide Letter No. L.G. / S.R.No.406-21 / WS / 2130 / 2021 dated 13/10/2021 to register an FIR, but as Shri Bhanupratap Singh, the Manager who had submitted the application got transferred and as I have been authorized by our bank to register an FIR, I have appeared here and I declare the facts of my complaint.
The land bearing block No.295, old survey Page 4 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined No.328, admeasuring about 8195 Sq.M. situated in the outskirts of Sevasi village was originally owned by Rameshbhai Dahyabhai Patel and in 2002, he sold out the said land to Pragnesh Balkrushna Shah R/o G-2, Kanha Complex, Purushottamnagar, BPC Road, Vadodara, Director of M/s Apollo Chemtech Ltd. by executing a sale-deed and that in 2002, the said land was under possession of Pragnesh Balkrushna Shah. In 2002, Pragnesh Balkrushna Shah applied to avail a cash credit loan of Rs.65,00,000/- from our Andhra Bank, currently Union Bank of India and he had informed the bank in writing to mortgage the land bearing block No.295, old survey No.328, admeasuring about 8195 Sq.M. situated in the outskirts of Sevasi village against the said loan. Therefore, the officers of Andhra Bank at the relevant times verified the documents submitted with the application and sanctioned the loan and the limit of the said loan was Rs.50,00,000/-. Total amount of Rs.65,00,000/- including the said Rs.50,00,000/- and bank guarantee of Rs.15,00,000/- was given as a loan to M/s Apollo Chemtech Ltd. by the bank. Thereafter, Pragnesh Balkrushna Shah, Director of M/s Apollo Chmetech Ltd. did not repay the interest or principal amount of the said loan and total amount of Rs.75,78,779/- including the interest and principal amount of the said loan was due to the bank and therefore, the bank filed a recovery case in the D.R.T., Ahmedabad and prayed to attach the land (property) mortgaged to recover Page 5 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the amount of the loan. The amount of loan was not repaid by M/s Apollo Chemtech Ltd. even during the pendency of the said case. Therefore on 22/03/2005, D.R.T., Ahmedabad issued injunction against sale of the land mortgaged and on 21/09/2006, after the case was adjudicated, the value of the land mortgaged against the loan was determined to be Rs.83,77,000/- and it was ordered to auction the said land by handing over its possession to Andhra Bank and therefore, Andha Bank, currently Union Bank of India took possession of the said land bearing block No.295 old survey No.328 and erected a board displaying the order number of D.R.T., Ahmedabad and it stated that trespasser in the said land will be prosecuted. The said order was recorded in the revenue record vide entry No.6005 on 30/10/2006.
Thereafter, Andhra Bank issued a public notice on 21/01/2008 for auction of the said land bearing block No.295, old survey No.328, on the basis of which, the value of the land was determined and it was auctioned and Taksh Enterprise, 301, Taksh Classic, Vasna Road, Vadodara City placed the highest bid of Rs.90,59,000/- for the said land and therefore, the bank decided to sell out the said land to it. Thereafter, while the process of executing a sale-deed was underway by Andhra Bank, Pragneshbhai Shah, as the land auctioned was registered in his name, filed an appeal bearing case No.85/2008 challenging the order of the D.R.T., Page 6 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Ahmedabad before the D.R.T., Mumbai. Therefore, the bank could not execute a sale-deed in favour of Taksh Enterprise and in 2014, Pragneshbhai Shah withdrew appeal case No.85/2008 filed in the D.R.T., Mumbai. Thereafter, Pragneshbhai Shah filed appeal No.2522/2015 in the Hon'ble High Court of Gujarat, Ahmedabad and during that time, Pragnesh Balkrushna Shah, Andhra Bank and Taksh Enterprise conducted negotiations and determined the value of the said land to be Rs.2,25,00,000/-, but Taksh Enterprise refused to pay Rs.2,25,00,000/- and as Girishbhai Jayantibhai Patel R/o 12, Shobhnanagar Society, Vasna Road, Vadodara City agreed to pay Rs.2,25,00,000/-, the case was settled in the High Court and the Hon'ble High Court of Gujarat passed an order that Girishbhai Jayantibhai Patel shall pay Rs.2,25,00,000/- to Andhra Bank and Pragneshbhai Shah shall execute a sale-deed for the said land in favour of Girishbhai Jayantibhai Patel by cooperating with Andha Bank. In compliance with this order, Girishbhai Jayantibhai Patel deposited the entire decided amount in the Andhra Bank. Despite the bank frequently informing Pragneshbhai Shah to execute the sale-deed, Pragneshbhai Shah was not coming for giving his consent for executing the sale-deed. Pragneshbhai Shah filed a new petition, No. 3280/2016 in the Hon'ble High Court of Gujarat by citing that the settlement order passed by the Court in the Appeal no. 2522/2015 was due to a misunderstanding on his part.Page 7 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined As the Hon'ble High Court of Gujarat while hearing the petition directed to maintain the earlier order, Pragneshbhai Shah withdrew the petition. And thereafter, the sale-deed of the land was to be executed in favour of Girishbhai Jayantibhai Patel. However, despite Andhra Bank frequently informing Pragneshbhai Shah to execute the sale-deed, he was not coming for executing the sale-deed. Therefore, the bank filed a contempt petition, No. 01/2019 against Pragneshbhai in the Hon'ble High Court of Gujarat. However, it has come to notice that Pragneshbhai has gone abroad.
We came to know about seven months ago that Rameshbhai Dahyabhai Patel, R/o Sevasi, Teh.-Dist. Vadodara did not have any title and share in the land under possession of the bank, bearing Old Survey No. 328, Block No. 295, located in the outskirts of Sevasi village; and Viralbhai Ajmera had sold out the said land to Pragneshbhai Shah by executing the sale-deed using his power of attorney. It was fully known that on the basis of the sale-deed, a notice of section 135-D was served to Rameshbhai Dahybhai Patel at the time of mutation entry. He has not filed any complaint regarding his title and share till 2019 i.e. for 17 years. However, by taking benefit of the fact that Pragneshbhai had gone abroad, and that the land was in the name of Pragneshbhai and that Pragneshbhai, along with Andhra Bank, was not executing the sale-deed in favour of the person Page 8 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined who purchased the said land, and Pragneshbhai had gone abroad without executing the sale-deed, Rameshbhai Dahyabhai Patel, with an intention to grab and illegally occupy the said land by hatching a conspiracy and in collusion with each other, prepared the forged documents such as an agreement of handing over possession of the property mortgaged with the bank to Sanjaysinh Janaksinh Mahida. Sanjaysinh Mahida, despite knowing that the said land did not belong to Rameshbhai Patel, erected a board claiming his title and share and constructed a pucca room on the said land. Moreover, Rameshbhai Patel also executed a power of attorney for the said land in favour of Shobhrajsinh Madhavsinh Sindha; and despite him being aware of the fact that the said land did not belong to Rameshbhai, he filed a case under the Tenancy Act in the Agricultural Tribunal by using a forged power of attorney and preparing forged documents of the valuable land, despite knowing that Shobhrajsinh Madhavsinh Sindha did not have any title or share.
Therefore, when our bank came to know that Rameshbhai Dahyabhai Patel, Sanjaysinh Janaksinh Mahida, Shobrajsinh Madhavsinh Sindha, despite not having any title or share in the said land, in collusion with one another, prepared forged documents for grabbing the valuable land and illegally occupied the said land by using those documents Page 9 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined as originals, I sent Salimbhai Rasulbhai Ghanchi, a bank employee, for inspection. When he visited the land under possession of the bank, he noticed that the board displaying the ownership of the bank had been removed and some persons were constructing a room on that land. When they were informed that the land belonged to the bank, they replied that the land belonged to them and warned bank employee not to visit the land. The bank employee, Salimbhai, returned to the bank and elaborated the above facts. Thereafter, Girishbhai Jayantibhai Patel who purchased the land also made a visit to that land after knowing these facts and came to know that the construction of the room was underway on the said land; and Rameshbhai Dahyabhai Patel, Sanjaysinh Janaksinh Mahida, Shobhrajsinh Madhavsinh Sindha, Vikrambhai Devabhai Bharwad and other ten-twelve Bharvads, whose names and addresses are not known, asked Girishbhai not to visit that land as the land belonged to them. They also threatened to kill him if he visited the land again. Further, Vikrambhai Devabhai Bharvad told Girishbhai that Sanjaybhai had handed over the possession of the land to him; he owned the possession through Sanjaybhai; and his men would remain deployed on the land permanently; and warned of not making a mistake of going there again. Girishbhai informed all these facts to Bhanuprtapsinh, the Officer of the bank at that time. I came to know about these facts from Bhanupratap.Page 10 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Therefore, the above persons (1) Rameshbhai Dahyabhai Patel, R/o Sevasi, Teh.-Dist. Vadodara, (2) Sanjaysinh Janaksinh Mahida, R/o Anand, (3) Shobhrajsinh Madhavsinh Sindha, R/o C-21, Goverdhan Park, near Basera, B/h Avadh Duplex, Tandalja, Vadodar City, and (4) Vikrambhai Devabhai Bharvad, R/o Anand and other ten- twelve Bharvads, whose names and addresses are not known, despite having the knowledge that the land bearing Block No. 295, Old Survey No. 328, admeasuring about 8195 sq.m., located in the outskirts of Sevasi village was owned by the Akota Branch of Andhra Bank, currently Union Bank of India, since 2006, Rameshbhai Dahyabhai Patel had, in collusion with one another, created forged agreements of handing over the possession of the property mortgaged with the bank to Sanjaysinh Janaksinh Mahida and by executing power of attorney in favour of Shobhrajsinh Madhavsinh Sindha with an intention to grab the said land; Shobhrajsinh Sindha by filing a case under the Tenancy Act in the Agricultural Tribunal and Sanjaysinh Mahida by erecting a board displaying their title and share in the said land and by constructing a pucca room and by keeping Vikrambhai Devabhai Bharvad and other ten-twelve Bharvads present for occupying the said land and by keeping Vikrambhai Bharvad and other Bharvads with him, by threatening Girishbhai Jayantibhai Patel to kill him, had grabbed the land after Page 11 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined occupying it; I hereby register a complaint to take legal action against all these persons. My witnesses are the persons mentioned in the complaint and whosoever is found during the investigation. The said offence has been committed from 30-10-2006 to date.
The facts of my complaint are true and correct as per my dictation.
Before me, ...............
(A.K.Raolji) Sr. Police Sub Inspector Vadodara Taluka PS"
[5] Brief facts of the case can be stated as under:
[5.1] That an F.I.R. being C. R. No.11197005210914 of 2021 was registered with the Vadodara Taluka Police Station District :
Vadodara Rural on 17th June 2021 for the offence punishable under Sections 465, 467, 468, 471, 406, 420, 427 and 447 read with 120B of the Indian Penal Code against the present applicants by the complainant for the same land bearing old survey No.328 Block No.292 in village : Sirasi, wherein it has been alleged that the accused therein have by creating false and fabricated documents taken over the possession of the land which was mortgaged with Page 12 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the bank. The said F.I.R. was investigated by the Investigating Agency and chargesheet was also filed against the accused persons therein.
[5.2] Pertinently, the complainant has also filed complaint in the office of the Collector, Vadodara under the Gujarat Land Grabbing (Prohibition) Act, 2020 against the same accused persons. The Collector, Vadodara, after inquiry, directed vide its order dated 13th October 2021 to register the F.I.R. under the provisions of the Land Grabbing Act. Accordingly, the impugned F.I.R. came to be registered on 14th October 2021 for the offence punishable under Sections 3, 4(1), 4(2), 4(3) of the Gujarat Land Grabbing (Prohibition) Act, 2020 and Section 506(2) of the Indian Penal Code against the present applicants.
[5.3] Admittedly, there are two F.I.Rs. registered by the same complainant against the same accused persons for the same land, but one under the Indian Penal Code and the second one under the provisions of the Land Grabbing Act.
[6] Being aggrieved and dissatisfied by the subsequent Page 13 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined F.I.R. under the Land Grabbing Act, the present applicants have approached this Court by way of these applications for the reliefs stated hereinabove.
[7] I have heard learned Senior Advocate Mr. Percy Kavina assisted by learned advocate Mr. M. M. Beg as well as learned advocates Mr. Maulik Nanavati and Mr. Ashish Dagli for the respective applicants and learned Senior Advocate Ms. Trusha Patel assisted by Mr. Bhavesh Babariya for the respondent - complainant and learned A.P.P. Mr. Himanshu K. Patel for the respondent -
State of Gujarat.
[8] Learned Senior Advocate Mr. Percy Kavina for the applicants, while assailing the impugned F.I.R., has made mainly following submissions:
[8.1] Learned Senior Advocate Mr. Kavina for the applicants submitted that the impugned F.I.R. is the second F.I.R. by the same complainant against the same accused persons for the same land.
He therefore submitted that the second F.I.R. is not maintainable in the eye of law. Learned Senior Advocate Mr. Kavina submitted that Page 14 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined lodgement of the second F.I.R. for the same set of allegations is violation of Article 20(2) of the Constitution of India, thus, same would amount to double jeopardy.
[8.2] Learned Senior Advocate Mr. Kavina for the applicants submitted that registration of the second F.I.R. is nothing, but a sheer abuse of the process of law and thereby, the same deserves to be quashed and set aside by this Court under Section 482 of the Cr.P.C. Learned Senior Advocate Mr. Kavina submitted that with respect to the land in question, civil suit and tenancy proceedings are already under adjudication and thereby, the impugned F.I.R.
under the provisions of the Land Grabbing Act is not tenable in the eye of law.
[8.3] Learned Senior Advocate Mr. Kavina for the applicants, in the alternative, submitted that all the accused persons are agreeable for cooperation in the investigation of the impugned F.I.R. registered for the offence under the Land Grabbing Act, however, requested that in the event of filing of chargesheet, the said chargesheet be merged with and / or the supplementary chargesheet be merged with the chargesheet that has been filed for Page 15 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the offence punishable under the provisions of the Indian Penal Code in connection with the first F.I.R. The learned Senior Advocate Mr. Kavina submitted that the purpose for such an alternative submission is obviously to avoid two trials of two F.I.Rs.
for the same land and between the same parties for the same land in question.
[8.4] Learned Senior Advocate Mr. Kavina for the applicants has placed heavy reliance on the decision of the Division Bench of this Court in the case of Kamlesh Jivanlal Dave and another vs. State of Gujarat and others [R/Special Civil Application No.2995 of 2021 and allied matters decided on 9th May 2024].
[8.5] By making above submissions, learned Senior Advocate Mr. Kavina for the applicants have requested this Court to allow the present applications as prayed for in the interest of justice.
[9] Learned advocate Mr. Maulik Nanavati for the other applicants has adopted the arguments as canvassed by learned Senior Advocate Mr. Percy Kavina and placed reliance on the decisions of the Hon'ble Supreme Court in the case of Tarak Dash Page 16 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Mukherjee and others reported in 2022 SCC Online SC 2121 and in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and another reported in (2013) 6 SCC 348.
[9.1] By making above submissions, learned advocate Mr. Nanavati for the respective applicants requested this Court to allow the present applications as prayed for in the interest of justice.
[10] Per contra, learned Senior Advocate Ms. Trusha Patel assisted by learned advocate Mr. Bhavesh Babariya for the respondent - complainant, while opposing the present applications, made the following submissions:
[10.1] Learned Senior Advocate Ms. Patel for the respondent - complainant submitted that the impugned F.I.R. has been lodged under the provisions of the Land Grabbing Act which is a Special Act. As per the provisions of the Special Act, a clear cognizable offence has been made out and thereby, the Collector, Vadodara has rightly ordered for registration of the F.I.R. against the present applicants, therefore, this Court may not entertain the present applications by exercising the inherent jurisdiction under Page 17 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Section 482 of the Cr.P.C.
[10.2] Learned Senior Advocate Ms. Patel for the complainant submitted that the offence alleged in the impugned F.I.R. under the Land Grabbing Act is completely distinct in nature and thereby, cannot be said to be the same as the offence under the Indian Penal Code registered under the first F.I.R. Learned Senior Advocate Ms. Patel further submitted that merely there is an overlapping allegations in both the F.I.Rs., it would not constitute two offences registered under the two F.I.Rs. are the same and one.
Learned Senior Advocate Ms. Patel further submitted that the offence under the Indian Penal Code and the offence under the Special Act i.e. the Land Grabbing Act, both are independent in nature and therefore, she submitted that the impugned F.I.R. may not be quashed on the ground of sameness.
[10.3] Learned Senior Advocate Ms. Patel for the complainant fervently submitted that the impugned F.I.R. has been registered under the Special Act, whereas the first F.I.R. was registered under the Indian Penal Code. She further submitted that Page 18 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined both the legislation has distinct set of proceedings with respect to registration of F.I.R., investigation, report, cognizance, relief and thereby, scope of both the trials are distinctly separate and therefore, cannot be tried together.
[10.4] Learned Senior Advocate Ms. Patel for the complainant submitted that the offence under provisions of the Land Grabbing Act is exclusively triable by the Special Court. She further submitted that as per the provisions of the Land Grabbing Act, the jurisdiction of the Special Court is limited to only the offence committed under the Land Grabbing Act. Learned Senior Advocate Ms. Shah submitted that on the other hand, the offence under the Indian Penal Code, in the instant case, are exclusively triable by the Court of learned Magistrate and thereby, the learned Magistrate Court will not have any jurisdiction to try the offence under the provisions of the Land Grabbing Act and thus, the second F.I.R., which is under the provisions of the Land Grabbing Act, cannot be clubbed with the first F.I.R.
[10.5] Learned Senior Advocate Ms. Patel for the Page 19 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined complainant placed reliance on the following decisions:
(i) The decision of the Hon'ble Supreme Court in the case of Sangeetaben Mahendrabhai Patel vs. State of Gujarat reported in 2012(2) G.L.H. 145;
(ii) The decision of the Hon'ble Supreme Court in the case of Pradeep S. Wodeyar vs. State of Karnataka reported in (2021) 19 SCC 62;
(iii) The decision of the Hon'ble Supreme Court in the case of Vivek Gupta vs. Central Bureau of Investigation reported in 2003(8) SCC 628;
(iv) The decision of the Hon'ble Supreme Court in the case of Anju Chaudhary vs. State of Uttar Pradesh reported in (2013) 6 SCC 384;
(v) The decision of the Hon'ble Supreme Court in the case of Abhishek Singh Chauhan vs. Union of India and others reported in 2022 SCC Online SC 1936;
(vi) The decision of the Hon'ble Supreme Court in the case of T. T. Antony vs. State of Kerala reported in 2001 (6) SCC 181;Page 20 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined
(vii) The decision of the Hon'ble Supreme Court in the case of Arnab Ranjan Goswami vs. Union of India reported in 2020 (14) SCC 12;
(viii) The decision of the Hon'ble Supreme Court in the case of Amish Devgan vs. Union of India reported in 2021(1) SCC 1;
(ix) The decision of this Court in the case of Yogesh Premjibhai Suvariya vs. State of Gujarat reported in 2021(2) GLH 691.
[10.6] By making above submissions, learned Senior Advocate Ms. Patel for the complainant requested this Court to dismiss the present applications.
[11] Learned A.P.P. Mr. Himanshu K. Patel for the respondent - State of Gujarat has adopted all the submissions as canvassed by learned Senior Advocate Ms. Patel for the respondent
- complainant and requested this Court to dismiss the present applications.
[12] I have heard learned advocates appearing for the Page 21 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined respective parties and have gone through the material produced on record in detail. No further and other submissions have been canvassed by the learned advocates appearing for the respective parties except what are stated hereinabove.
[13] Having heard the submissions of the learned advocates appearing for the respective parties and having gone through the material produced on record, the following questions fall for consideration of this Court:
(i) Whether second F.I.R. / subsequent F.I.R. between the same parties on overlapping set of allegations for the offences punishable under the different Act would be maintainable?
(ii) Whether allowing the criminal proceedings arising from the subsequent F.I.R. between the same parties under the different Act is violative of Article 20(2) of the Constitution of India?
(iii) Whether offences falling under the two different statutes on overlapping set of allegations between the Page 22 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined same parties can be clubbed together holding it as one and the same?
[14] So as to decide the aforesaid questions, in my view, it is necessary to consider the provisions of Section 4 of the Cr.P.C. as well as the scheme and the Act of the Special Act i.e. the Land Grabbing Act. For the sake of brevity, the relevant provisions are extracted hereinbelow?
"4. Trial of offences under the Indian Penal Code and other laws.--(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences."
[15] Upon careful consideration of the aforesaid provisions Page 23 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined of Section 4 of the Cr.P.C., it appears that the said section is divided into two parts. Section 4(1) pertains to the offences under the Indian Penal Code. Section 4(1) further says that the investigation, inquiry and trial to be done as per the provisions of the Cr.P.C. The second part i.e. Section 4(2), which is relevant, pertains to all the offences that are falling under any other law shall be investigated, inquired, and tried subject to any other enactment regulating the manner or place of investigating, inquiring into and trying the same. Thus, Section 4 of the Cr.P.C.
has itself made it clear that the mode of investigation, inquiry and trial is different when the offences are committed under the Indian Penal Code and committed in any other statute other than the Indian Penal Code. Therefore, in the instant case, the offences are alleged under the Land Grabbing Act, thereby, as per the provisions of Section 4 of the Cr.P.C., investigation, inquiry and trial would be subject to the provisions of the Land Grabbing Act.
[16] It would, thus, be apt to take note of the provisions of the Land Grabbing Act, its scheme and thereby, at this stage, it is pertinent to take note of the observations of the Division Bench of Page 24 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined this Court in the case of Kamlesh Jivanlal Dave (supra) made in paras 234, 235, 236 and 237, which read as under:
"234. Taking clue from the above observations of the Apex Court referring to the pari materia provisions of the A.P. Act, when we look to the provisions of the impugned enactment, we find that the impugned enactment has been brought to remedy the mischief of land grabbing. The activity of grabbing of any land (whether belonging to the Government, local authority, a religious or charitable institution or endowment or any private person) by a person or group of persons, such grabbing must be :
(i) without any lawful entitlement, and (ii) with a view to:
(a) illegally taking possession of such lands; (b) or to enter into or create illegal tenancies, lease or licence or any other illegal agreements in respect of such lands; (c) to construct unauthorised structures thereon for sale or hire; or use or occupation of such unauthorized structures and the term "grabbed land" is to be construed in the same manner.
235. The meaning of the expression "land grabber" in Section 2(d) is inclusive, to take in its fold:(i) a person or a group of persons, who commits land grabbing ; (ii) a person who gives financial aid to any person for (a) taking illegal possession of the lands, or (b) construction of unauthorized structures Page 25 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined thereon; (iii) a person who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation; (iv) a person who abets the doing of any of the above mentioned acts ; (v) the successors in interest of such a person.
236. The expression "land grabber" and "land grabbing" have been defined in a very broad sense by giving a wide meaning to umbrage all such persons, who commit, financiers and abettors within the ambit of "land grabber" and even an attempt within the ambit of land grabbing. As per Section 3, the land grabbing in any form and any act connected with or arising out of the land grabbing has been made a criminal offence. The broad sweep of the penal provision is indicative of the legislative intent to punish all those who are connected with the offence of land grabbing, directly or indirectly in the manner provided therein. The Special Court are constituted and a time line has been given to dispose of the complaints of land grabbing, which is further indicative of the intention of the legislature to curb and punish unlawful activity of the land grabbing.
237. When the Statement of Objects and Reasons of the Act are read conjointly with the various Sections of the Gujarat Land Grabbing (Prohibition) Act, 2020, it is evident that the legislature had conceived of only one class of lands, which is Page 26 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined "grabbed lands" and the offence or mischief which the law aims to remedy is "grabbing of lands in the State". The term "grabbing" includes all types of activities, whereby a person takes possession of land, forcibly, dishonestly, violently, unauthorizedly or by unscrupulous means. It is, therefore, difficult to comprehend as to how persons, who commit offence of land grabbing in relation to the lands belonging to a private persons would fall in a separate class, when they entered into private person's property to take possession or deal with the same by creating unauthorized tenancies etc, they would otherwise be a land grabber. The ingredients of land grabbing, noted above, of occupying or attempt to occupy a private person's property having no ownership, title or physical possession, without any lawful entitlement, would all be present even in a case of activity to occupy or attempt to occupy a private person's property. It is axiomatic that so long as the land grabber occupies private property, he would be forming a different class or would be excluded from the purview of the Act, the main object of which is to prohibit the unlawful activities of land grabbing in the State. The question in regard to lawful entitlement of the occupier, therefore, for invoking the charging section plays an important and significant role. The petitioners have failed to show that "any activity of land grabbing" in relation to any land belonging to a private person, falls in a separate class and the occupant or the offenders cannot be included within the meaning of "land Page 27 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined grabber" under the Act 2020."
[17] Keeping in mind the object and purpose of the scheme, it is necessary to consider the provisions of the Land Grabbing Act.
Section 7 of the Land Grabbing Act reads as under:
"7. Constitution of Special Courts. (1) The State Government may, with the concurrence of the Chief Justice of the High Court of Gujarat, by notification in the Official Gazette constitute one or more Special Courts for such area or areas, or for such cases or class or group of cases, as may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government, whose decision in the matter shall be final.
(3) A Special Court shall be presided over by a judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court of the Gujarat.
(4) The State Government may also appoint, with the concurrence of the Chief Justice of the High Court of Gujarat, Additional Judges to exercise jurisdiction of the Special Court.Page 28 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined (5) A person shall not be qualified for appointment as a Judge or an Additional Judge of a Special Court unless he immediately before such appointment, is or has been a Sessions Judge or a District Judge.
(6) The Government from time to time may, by notification in the Official Gazette, reconstitute the Special Courts constituted under sub-section (1) and may, at any time abolish such Special Courts by a like notification.
(7) A Judge of the Special Court shall hold office for a term of three years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (6), whichever is earlier."
In view of Section 7 of the Land Grabbing Act, constitution of Special Court by the State Government with the concurrent of the Chief Justice of the High Court of Gujarat has been provided. The person qualified to be appointed as a Special Judge is necessarily to be a Sessions Judge or a District Judge. Meaning thereby, the offences under the Land Grabbing Act is to be tried by the Special constituted Court only and the Special Judge shall be not below the rank of a Sessions Judge or a District Judge.
Page 29 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [17.1] Section 9 of the Land Grabbing Act reads as under:
"9. Procedure and powers of Special Courts.
(1) The Special Court may, either suo moto or on application made by any person, or any officer authorized by District Collector, take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit.
Provided that if, in the opinion of the Special Court, any application filed before it is prima facie frivolous or vexatious, it shall reject the same without any further enquiry;
(2) Notwithstanding anything in the Code of Civil Procedure, 1908, any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under this Act, shall, subject to the provisions of this Act, be triable in the Special Court and the decision of Special Court shall be final.
Page 30 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined (3) Notwithstanding anything in the Code of Civil Procedure 1908, the Special Court may follow its own procedure which shall not be inconsistent with the principles of natural justice and fair play and subject to the other provisions of this Act and of any rules made thereunder while deciding the Civil liability, (4) Notwithstanding anything in the Code of Criminal Procedure, 1973, it shall be lawful for the Special Court to try all offences punishable under this Act.
(5) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. The evidence admitted during the criminal proceeding may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability. Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him in the criminal proceeding:
Provided that he shall neither be called as a witness Page 31 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined except on his own request in writing nor shall his failure to give evidence be made the subject of any comment by any of the parties or the special court or give rise to any presumption against himself or any person charged together with him at the same proceedings.
(6) Every case under sub-section (1) shall be disposed off finally by the Special Court, as far as possible, within a period of six months from the date of institution of the case before it.
(7) Every finding of the Special Court with regard to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons who committed such land grabbing, and every judgment of the Special Court with regard to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land.
Provided that the Special Court shall, by public notice specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the Special Court from any person within the period specified therein shall be considered by it:
Provided further that the Special Court shall cause a notice of taking cognizance of the case under the Act served Page 32 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined on any person known or believed to be interested in the land, after satisfying itself about the persons likely to be interested in the land.
(8) When an offence of land grabbing is proved, the Special Court may if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property.
(9) It shall be lawful for the Special Court to pass such order as it may deem fit to advance the cause of justice. It may award compensation in terms of money for wrongful possession of the land grabbed which shall not be less than an amount equivalent to the Jantri value of the land grabbed as on the date of the order and profits accrued from the land payable by the land grabber to the owner of the grabbed land and may direct re-delivery of the grabbed land to its rightful owner. The amount of compensation and profits, so awarded and costs of re-delivery, if any, shall be recovered as an arrear of land revenue in case the Government is the owner, or as a decree of a civil court, in any other case to be executed by the Special Court:
Provided that the Special Court shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard, and consider such Page 33 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined representation and evidence."
Considering the provisions of Section 9, it is amply clear that legislature has prescribed independent procedure and power of the Special Court for the adjudication of the offences under the Land Grabbing Act. As per the provisions of Section 9, the offence alleged under the Land Grabbing Act, it is only the Special Court who can take cognizance of the offence by adopting its own procedure, however, shall not be inconsistent with the principles of natural justice and fair play. The Special Court shall be designated to try all the offences under the provisions of the Land Grabbing Act only. The Special Court has been empowered not only to take cognizance of an offence under the Land Grabbing Act on a criminal side, but is also empowered to determine the questions of title and ownership or lawful possession of any land grabbed. The Special Court has been further empowered to restore the possession alleged to have been taken over by the land grabbers. In sum and substance, the Special Courts are created and empowered with special powers to adjudicate / try criminal offences and at the same time, civil dispute as well.Page 34 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [17.2] Section 11 of the Land Grabbing Act reads as under:
"11. Burden of proof.
(1) Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is primafacie proved to be the land owned by the Government or by a private person, the Special Court shall presume that the person who is alleged to have grabbed the land is a land- grabber and the burden of proving that the land has not been grabbed by him shall be on such person.
(2) Where it is proved that a land grabber or any person on his behalf is or has at any time been, in possession of movable or immovable property which he cannot satisfactorily account for, or where his pecuniary resources are disproportionate to his known sources of income, the Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his activities as a land grabber."
Considering the provisions of Section 11, unlike any other criminal law, the onus has been cast upon the person who has alleged to have grabbed the land. In the common and general Page 35 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined criminal law and practice, it is the accused who is presumed to be innocent till the contrary is proved and thereby, entire burden is on the prosecution side to prove the commission of offence, whereas under the Special Act i.e. the Land Grabbing Act, the person who is alleged to have been grabbed the land is a land grabber and burden of proving the land has not been grabbed by him has to be discharged by him at the first instance. Thus, mens rea is not to be proved by the prosecution under the Land Grabbing Act unlike other offences of the Indian Penal Code.
[17.3] Section 12 of the Land Grabbing Act reads as under:
"12. Information to be recorded and investigation to be carried out by the police officer.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-
(a) no information about the commission of an offence under this Act, shall be recorded by a police officer without the prior approval of the District Collector in consultation with the Committee notified by the Government;Page 36 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined
(b) no investigation of an offence under the provision of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police, or for the areas where the Commissioner of Police is appointed by the State Government, by a police officer not below the rank of the Assistant Commissioner of Police."
Considering the aforesaid provisions, even lodgement of F.I.R. about commission of offence is subject to prior approval of the District Collector in consultation with the Committee prescribed, meaning thereby, unlike Section 154 of the Cr.P.C., the direct F.I.R. cannot be registered. The aforesaid section further specifies the officer who can investigate the offence i.e. not below the rank of Dy.S.P. and / or by the Assistant Commissioner of Police.
[18] At this juncture, it is relevant to take note of a decision of the Hon'ble Apex Court in the case of Amitbhai Anilchandra Shah (supra), wherein the Hon'ble Apex Court has, after taking into account catena of decisions, settled the proposition of law with regard to subsequent F.I.R. for the same offence and / or clubbing of the two F.I.Rs. The relevant observations made in paras 36 to 56 Page 37 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined and 58.1 to 60 read as under:
"Legal aspect as to permissibility / impermissibility of second FIR
36. Now, let us consider the legal aspects raised by the petitioner-Amit Shah as well as the CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to the CBI by order dated 12.01.2010 till filing of the charge sheet dated 04.09.2012, 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 sheet 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. 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 Page 38 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined 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 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 Page 39 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined 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 above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr. Rawal, learned ASG, by referring T.T. Anthony vs. State of Kerala (Delhi Admn.), (1979) 2 SCC 322 submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. Learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati - a potential witness to the earlier Page 40 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated, re-affirmed in the following subsequent decisions of this Court: (1). Upkar Singh vs. Ved Prakash (2004) 13 SCC 292 (2) Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254 (3) Chirra Shivraj vs. State of A.P. AIR 2011 SC 604 (4) C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC 567. In C. Muniappan (supra), this Court explained "consequence test", i.e., if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.
39. In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan (supra) as well as in Chirra Shivraj (supra), apply with full force since according to the CBI itself it is the case where:-
39.1 The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter;
39.2 The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eye witness to the abduction and consequent murders of Sohrabuddin and Kausarbi; and 39.3. Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter.
40. In view of the factual situation as projected by the CBI Page 41 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined itself, the ratio laid down by this Court in C. Muniappan (supra), viz., merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one chargesheet could not be filed [See T.T. Anthony (supra)].
41. In view of the consistent stand taken by the CBI, at this juncture, CBI may not be permitted to adopt a contradictory stand.
42. Learned counsel for the petitioner has placed reliance on the following decisions of this Court which explained "same transaction":(i) Babulal vs. Emperor , AIR 1938 PC 130 (ii) S. Swamirathnam vs. State of Madras, AIR 1957 SC 340 (iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR 1961 SC 1241 (iv) State of A.P. vs. Cheemalapati Ganeswara Rao & Anr., AIR 1963 SC 1850.
43. In Babulal (supra), the Privy Council has held that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it.
44. In Swamirathnam (supra), the following conclusion in para 7 is relevant:
"7. On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swamirathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge as framed, discloses one Page 42 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the cast of Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A) and on the cast of Choragudi Venkatadari, In re. ILR 33 Mad 502 (B). These cases are not in point. In the Bombay case, no charge of conspiracy had been framed and the decision in the Madras case was given before Section 120-B was introduced into the Indian Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction."
45. In State of A.P. v. Kandimalla Subbaiah AIR 1961 SC 1241, this Court held where the alleged offence have been committed in the course of the same transaction, the limitation placed by Section 234(1) cannot operate.
46. In State of A.P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850, while considering the scope of Section 239 of the old Code (Section 220 in the new Code), this Court held:
"28. The decision of the Allahabad High Court in T.B. Mukherji case directly in point and is clearly to the effect that the different clauses of Section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and Page 43 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several parsons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separte trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some "principle". ....
47. Learned ASG placed reliance on the following decisions: (i) Anju Chaudhary vs. State of U.P. & Anr., 2012(12) Scale 619 (ii) Babubhai vs. State of Gujarat (2010) 12 SCC 254 (iii) Surender Kaushik & Ors. vs. State of U.P. & Ors., JT 2013 (3) SC (iv) Nirmal Singh Kahlon vs. State of Punjab (2009) 1 SCC 441 (v) Ram Lal Narang vs. State (Delhi Admn.), (1979) 2 SCC 322 (vi) Upkar Singh vs. Ved Prakash & Ors. (2004) 13 SCC 292 (vii) Kari Choudhary vs. Mst. Sita Devi & Ors. (2002) 1 SCC 714.
48. In Anju Chaudhary (supra) this Court was concerned with a case in which the second FIR was not connected with the offence alleged in the first FIR. After carefully analyzing Page 44 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the same, we are of the view that it has no relevance to the facts of the present case.
49. In Babubhai (supra), the very same Bench considered the permissibility of more than one FIR and the test of sameness. After explaining FIR under Section 154 of the Code, commencement of the investigation, formation of opinion under Sections 169 or 170 of the Code, police report under Section 173 of the Code and statements under Section 162 of the Code, this Court, has held that "21....the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to 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 having two or more parts of the same transaction."
This Court further held that if the answer is in affirmative, the second FIR is liable to be quashed. It was further held that in case the contrary is proved, where the version in the second FIR is different and is in respect of the two different incidents/crimes, the second FIR is permissible. This Court further explained that in case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. It is clear from the decision that if two FIRs pertain to two different incidents/crimes, second FIR is permissible. In the light of the factual position in the case on hand, the ratio in that decision is not helpful to the case of the CBI.
50. The CBI has also placed reliance on a recent decision of this Court in Surender Kaushik (supra). A careful perusal of the facts which arose in the said case would disclose that three FIRs which formed the subject matter of the said case were registered by three different complainants. Two of the FIRs consisted of cross cases inasmuch as the complainant of the first FIR was accused in the other while the accused in Page 45 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the first FIR was the complainant in the second FIR. The third FIR was filed by a third person citing both the complainants of first two FIRs as accused persons. In view of the above peculiar facts situation arising in the said case that the second and third FIRs were not quashed by the High Court, which decision was upheld by this Court, we are satisfied that the said decision has no relevance to the facts of the present case.
51. In Nirmal Singh Kahlon (supra), this Court has carved out an exception for filing a second FIR. As per the exception carved out in the said case, the second FIR lies in a case where the first FIR does not contain any allegations of criminal conspiracy. On the other hand, in the case on hand, the first FIR itself discloses an offence of alleged criminal conspiracy and it was this conspiracy which the CBI was directed to unearth in the judgment dated 12.01.2010 based on which the CBI filed its first FIR, hence, the CBI cannot place reliance on this judgment to justify the filing of the second FIR and a fresh charge sheet.
52. Ram Lal Narang (supra) was cited to be an authority carving out an exception to the general rule that there cannot be a second FIR in respect of the same offence. This Court, in the said decision, held that a second FIR would lie in an event when pursuant to the investigation in the first FIR, a larger conspiracy is disclosed, which was not part of the first FIR. In the case on hand, while entrusting the investigation of the case relating to the killing of Sohrabuddin and Kausarbi to the CBI, this Court, by order dated 12.01.2010, expressed a suspicion that Tulsiram Prajapati could have been killed because he was an eye witness to the killings of Sohrabuddin and Kausarbi.
53. The CBI also filed an FIR on 01.02.2010 based upon the aforesaid judgment dated 12.01.2010 and conducted the investigation reaching to a conclusion that conspiracy to kill Sohrabuddin and Kausarbi and conspiracy to kill Tulsiram Prajapati were part of the same transaction inasmuch as both Page 46 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined these conspiracies were entered into from the very outset in November, 2005. Based upon its investigation, the CBI filed a status report (s) before this Court and an affidavit in Writ Petition (Crl.) No. 115 of 2007 bringing to the notice of this Court that killing of Tulsiram Prajapati was also a part of the same transaction and very same conspiracy in which killings of Sohrabuddin and Kausarbi took place and unless the CBI is entrusted with the investigation of Tulsiram case, it will not be able to unearth the larger conspiracy covered in the first FIR. The fact that even as per the CBI, the scope of conspiracy included alleged killing of Sohrabuddin and Kausarbi and alleged offence of killing of Tulsiram Prajapati and the same is unequivocally established by the order passed by this Court on 12.08.2010 in Writ Petition (Crl.) No. 6 of 2007 which is fortified by the status report dated 11.11.2011 filed by the CBI has already been extracted in paragraphs supra.
54. In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior counsel for the petitioner, in Ramlal Narang (supra), the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case.
55. Upkar Singh (supra) also carves out a second exception to the rule prohibiting lodging of second FIR for the same offence or different offences committed in the course of the transaction disclosed in the first FIR. The only exception to the law declared in T.T. Anthony (supra), which is carved out in Upkar Singh (supra) is to the effect that when the second FIR consists of alleged offences which are in the nature of the Page 47 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined cross case/cross complaint or a counter complaint, such cross complaint would not be permitted as second FIR. In the case on hand, it is not the case of the CBI that the FIR in Tulsiram Prajapati's case is a cross FIR or a counter complaint to the FIR filed in Sohrabuddin and Kausarbi's case being FIR dated 01.02.2010.
56. The ratio laid down in Kari Choudhary's case is heavily relied on by learned ASG appearing for the CBI. In that decision, it was held that when there are two rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. While there is no quarrel as to the above proposition, after carefully considering the factual position, we are of the view that the said decision is not helpful to the case on hand.
* * *
"Summary
58.1. This Court accepting the plea of the CBI in Narmada Bai (supra) that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed the 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 the 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 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.
Page 48 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined 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.
Page 49 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined 58.5. 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.
58.6. In the case on hand, as explained in the earlier paras, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25/26.11.2005. We have already concluded that this Court having reposed faith in the CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed the CBI to "take up" the investigation.
58.7. For vivid understanding, let us consider a situation in which Mr. 'A' having killed 'B' with the aid of 'C', informs the police that unknown persons killed 'B'. During investigation, it revealed that 'A' was the real culprit and 'D' abetted 'A' to commit the murder. As a result, the police officer files the charge sheet under Section 173(2) of the Code with the Magistrate. Although, in due course, it was discovered through further investigation that the person who abetted Mr. 'A' was 'C' and not 'D' as mentioned in the charge sheet filed under Section 173 of the Code. In such a scenario, uncovering of the later fact that 'C' is the real abettor will not demand a second FIR rather a supplementary charge sheet under section 173(8) of the Code will serve the purpose.
58.8. Likewise, in the case on hand, initially the CBI took a stand that the third person accompanying Sohrabbuddin and Kausarbi was Kalimuddin. However, with the aid of further investigation, it unveiled that the third person was Tulsiram Prajapati. Therefore, only as a result of further investigation, the CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted; instead filing of a Page 50 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined supplementary charge sheet in this regard will suffice the issue.
58.9. Administering criminal justice is a two-end process, where guarding the ensured rights of the accused under Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly, 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. As a consequence, in our view this is a fit case for quashing the second F.I.R to meet the ends of justice.
58.10. The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same.
Conclusion:
59. In the light of the specific stand taken by the CBI before this Court in the earlier proceedings by way of assertion in the form of counter affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted the CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Page 51 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Court directed the CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.
60. In view of the above discussion and conclusion, the second FIR dated 29.04.2011 being RC No. 3(S)/2011/Mumbai filed by the CBI is contrary to the directions issued in judgment and order dated 08.04.2011 by this Court in Writ Petition (Criminal) No. 115 of 2009 and accordingly the same is quashed. As a consequence, the charge sheet filed on 04.09.2012, in pursuance of the second FIR, be treated as a supplementary charge sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Criminal) No. 5 of 2013."
[19] Having considered the aforesaid decision, in my view, it is appropriate to know under what facts and circumstances, proposition of law was settled. It appears that a broad prayer made therein before the Hon'ble Apex Court was with regard to quashment of second F.I.R. that was filed by the CBI and not seeking quashment of investigation. A further prayer was the chargesheet that was filed by the CBI be treated as a supplementary chargesheet in the first F.I.R. so that the fundamental right under Page 52 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Article 21 of the Constitution of India is not infringed. In light of the said prayer and the broad fact that the first F.I.R. was filed for false encounter of one Sohrabuddin and Kausarbi and the second F.I.R. by the CBI was filed for the alleged fake encounter of one Tulsiram Prajapati who was an eyewitness to the abduction and consequent murder of Sohrabuddin and Kausarbi. Tulsiram Prajapati was allegedly kept under the control of the accused police officer as a part of the same conspiracy till the time he was allegedly killed in fake encounter. In the case before the Hon'ble Supreme Court, in both the F.I.Rs., the offences are punishable under the General Criminal Law i.e. the Indian Penal Code and thereby, considering the various provisions of the Code of Criminal Procedure, 1973 i.e. Sections 154 to 162, 169, 170, 173(8) and 220, the Hon'ble Supreme Court held that lodgement of second F.I.R. and a fresh chargesheet is violative of the fundamental right under Articles 14, 20 and 21 of the Constitution of India and thereby, the second F.I.R. was ordered to be quashed and the chargesheet filed pursuant to the second F.I.R. is directed to be treated as a supplementary chargesheet in the first F.I.R.
Page 53 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [20] Turning to the facts of the case on hand, true it is that in both the F.I.Rs., the disputed land is the same, parties are the same and some allegations are overlapping, however, when oneness, sameness and / or continuing offences are to be considered, the same can be weighed only when the offences committed under the one and the same Act. If an act is an offence under the two distinct Act, second F.I.R. / subsequent F.I.R. cannot be said to be the same as the first F.I.R. I say so because one common Act may have the effects of two different offences, as envisaged under the two different Acts. For better understanding, this Court would like to explain by giving an illustration. Assuming that 'X' person has issued a postdated cheque in lieu of some goods and / or the services that he received from person 'Y' and subsequently, the said cheque is dishonoured on the ground of stop payment and / or due to insufficient fund, in that event, upon dishonouring of cheque, person 'X' drawer of the said cheque said to have committed an offence under Section 138 of the Negotiable Instruments Act, which is a Special Act. At the same time, person 'Y' may also file an F.I.R. under Section 406 and / or 420 of the Indian Penal Code alleging that person 'X' drawer of the cheque had an Page 54 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined intention to cheat from inception and thereby, by issuing a cheque deceived the person 'Y' to give goods and render services. In that event, if the F.I.R. is filed and the investigation reveals that at the time of issuance of cheque, there was no fund at all in the account and the funds were diverted after the issuance of cheque so as to render the instrument dishonoured, then, in that event, mens rea of the drawer of the cheque, prima facie, said to have been made out and thereby, the offence punishable under Section 406 and / or 420 of the Indian Penal Code, as the case may be, is liable to be prosecuted. In the instant case, if prima facie offence is made out in the second F.I.R. under Land Grabbing Act, it is the right of the complainant to pursue the remedy available under the Special Act.
At this stage, this Court would like to refer a decision of the Allahabad High Court in the case of Emperor vs. Joti Prasad Gupta reported in AIR 1932 Allahabad 18, wherein the issue was whether conviction recorded under Section 9(a) of Salt Act (Act 12 of 1888) and Section 117 of the Indian Penal Code was legally justifiable where the provision had been made in Clause (c) of Section 9 of the said Act for the punishment of abetment of offences under Clauses (a) and (b) of Section 9. The main bone of contention Page 55 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined therein was that an act of abetment in contravention of the Salt law is an offence under the Salt Act and cannot be an independent offence under the Penal Code as the abetment of offence under Sections 9(a) and 9(b), Salt Act, is a substantive offence under Section 9(c) of the said Act and punishment has been provided in the said Act for the abetment of the offences under Sections 9(a) and 9(b) and thereby, a separate offence of abetment cannot be made out under the Penal Code. The relevant observations made by the Allahabad High Court in the case of Joti Prasad Gupta (supra) can be read thus as under:
"9. Laws regulating the manufacture of salt, appear to have been made at a very early period of the British rule in this country. We emphasize the fact that Act 12 of 1882 did not for the first time declare certain acts done in contravention of that Act or of any rule made thereunder to be offences which were punishable by fine or imprisonment for nonpayment of fine. Similar provisions were made in Sections 4 and 7, Act 14 of 1843 which was applicable to the North Western Provinces of the Presidency of Bengal. Section 4 ran thus:
"And it is further enacted that from and after 1st September 1843, the manufacture of alimentary salt throughout the North Western Provinces of the Presidency of Bengal without the express sanction of the Government is prohibited : and that any person engaging in the manufacture of such salt, or preparing or causing to be prepared works for the manufacture of such salt, without such sanction, and all zamindars or Page 56 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined other proprietors of land, or their agents, conniving at such illicit manufacture, shall on conviction by the Magistrate, within the limits of whose district the offence may have occurred, be punished by a fine not exceeding Rs. 500, and on nonpayment of such fine by imprisonment not exceeding six months with or without hard labour, and that all works at which such manufacture was often conducted or which have design for such manufacture shall be destroyed, and any salt which may be manufactured or stored thereat shall be seized and confiscated. Section 7 inter alia provided for the offence of abetment and was expressed in the following words. And it is further enacted that all persons evading or attempting to evade the payment of the duties imposed by this Act and all persons aiding or abetting such attempts or evasions or in any manner acting in contravention of the Act, or of any order made and issued under the provisions thereof and all zamindars and other proprietors of land or their agents, who shall wilfully connive at such attempts or evasions or aid such acts, shall on conviction by the Magistrate within the limits of whose district the offence may have occurred be punished by a fine not exceeding Rs. 500 and on nonpayment thereof by imprisonment not exceeding six months with or without hard labour."
10. The infraction of the Salt law and the abetment of certain offences under the Salt law were therefore offences under Act 14 of 1843 and were punishable with fine or with imprisonment for nonpayment of fine. Under Act 12 of 1882, they continued to be offences, but the sentences provided for the offences are slightly different as would appear from the following text of Section 9 of the Act:
"Whoever commits any of the following offences (viz). :
(a) does anything in contravention of this Act or of any rule made here-under; (b) evades payment of any duty or charge payable under this Act or any such rule; or
(c) attempts to commit or abets within the meaning of Page 57 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined the Penal Code, the commission of any of the offences mentioned in Clauses (a) and (b) of this section, shall, for every such offence, be punished with fine which may extend to Rs. 500, or with imprisonment for a term which may extend to six months, or with both."
11. The general criminal law of the land is to be found in Act 45 of 1860, which received the assent of the Governor- General in Council on 6th October 1860. It has been provided in Section 40, I.P.C. that the word "offence" in Section 117 of the Code denotes a thing punishable under this Code or under a special or local law as hereinafter defined. This provision was not to be found in the Penal Code as originally enacted but was introduced for the first time under Act 27 of 1870. The effect of this section is to make every thing punishable under a special law an offence within the meaning of the amendment was to enlarge the scope of the Penal Code by making offences under special law also offences under the Penal Code. The result therefore was that offences under the Excise Act (Act 12 of 1896), under the Post Office Act (Act 6 of 1898), under the Explosive Substances Act, (Act 6 of 1908) or the Police Act (Act 5 of 1861) or under the Registration Act became also offences under the Penal Code. In these Acts, the abetment of certain offences has been provided for as a substantive offence. We refer to Section 59, Excise Act, to Section 70, Post Office Act, Section 12, Explosives Act, Section 6, Explosive Substances Act, Section 82, Registration Act and Section 36, Police Act. If therefore we read Section 40 in conjunction with the relevant penal sections of the special or local Acts, the following facts will have to be deduced; (1) that all acts or omissions in contravention of special or local Acts which are punishable under the said Acts, fall under the definition of "offences" in the Penal Code; (2) that all abetments of offences which are offences under the special or local Acts and are punishable under the said Acts, also fall under the definition of "offences" in the Penal Code.
12. In this connexion, Section 40, I.P.C. should be read in Page 58 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined conjunction with Sections 2 and 5. Section 2 expressly provides that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof of which he shall be guilty, etc The effect of Section 5 is to qualify the general repeal indicated in Section 2, by expressly declaring that offences defined and provided for by special and local laws continue to be offences and are punishable as such. Section 5 clearly declares that the Penal Code is not intended to repeal, vary, suspend or affect any of the provisions of any special or local law. The one enactment has not the effect of repealing the other. The two co-exist without conflict. In order to leave no doubt on this point, the law on the subject has been declared by the express provision of Section 26, General Clauses Act, which provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall "be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. It is clear therefore that where an act is punishable under a special law and also under a general statute, the offender could be proceeded with under either or both, but could not be punished twice for the same act or omission which constituted the offence. Where there is nothing in the special Act to exclude the operation of the general criminal law, it cannot be inferred that there was an intention on the part of the legislature to exclude it. We accept the following statement of law in Halsbury's Laws of England (Vol. 27, p. 168):
"The general law of the country is cot altered by special legislation made without particular reference to it, though a statute passed for a particular purpose must so far as that purpose extends override general enactments."
13. It was so held by the Madras High Court so far back as [1876] 1 Mad. 55:
"The ordinary criminal law is not excluded by Regn. 7 Page 59 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined of 1817 or of Act 20 of 1860 (vide Section 20). The permission of the Board of Revenue or of the Committees is required only for the procedure prescribed in the special Acts, and these special provisions cannot be taken out of the Acts and applied as a restriction to the ordinary operation of the criminal law."
14. In The Queen v. Hussan Ali [1873] 5 N.W.P. 49 it was held by Turner, J., that on the same facts the conviction and sentence under Section 27, Cattle Trespass Act (Act 1 of 1871), and Section 169, I P.C. was illegal. The conviction and sentence under Section 27 were quashed, but the conviction under Section 169 was maintained but the sentence was reduced.
15. In The Queen v. Ramachandrappa [1883] 6 Mad. 249 it was held that the provisions of the Penal Code were not in conflict with those of the special law, and effect might therefore be given to both. It was observed in passing that in ordinary cases where there were no aggravating circumstances the Village Munsif or civil Court would act discreetly in employing the special powers conferred on it under Section 15(6) and Section 16(3), Regn. 4 of 1816, but if a charge was instituted in a criminal Court under the Penal Code, it must be dealt with by that Court. In Kuloda Prasad Mozurndar v. Emperor [1907] 11 C.W.N. 100 a Bench of the Calcutta High Court took much the same, view as was taken in the last mentioned case that ordinarily it was desirable that when an act or omission was made penal by two Acts, one general and the other special, the sentence should be passed under the special Act. The learned Judges referred to the rule quoted by Lord Esher in Lee v. Danger [1892] 2 Q.B. 337 (at p. 348):
"If one statute made the doing of an act felonious and a subsequent Act makes it only penal, the latter is considered as the virtual repeal of the former."Page 60 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025
NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined
16. After quoting this passage they made the following observation relating to this rule:
"We are not however disposed now to lay down broadly in this country that in every case a special penal law repeals by implication a previously existing general law relating to an offence of the same nature, and in this case it is not necessary for us to do so. If we were to do so, we might infringe the rule of interpretation in Section 26, General Clauses Act. We are not also disposed to accept Mr. Roy's contention that the penal provisions of the Railways Act are self- contained and the punishment for acts and omissions regarding a railway administration in India must be inflicted under this Act only. The penal provisions in the Act are not obviously exhaustive and there is nothing in the Act itself or any other enactment in force in India which excludes the operation of the general laws in force as to offences which are not punishable under the Act."
17. We are entirely in accord with the view set out above.
18. Our attention was called to the legal maxim referred to in the judgment of the Chief Court and to a number of English authorities which have been dealt with in the judgment of Das, J., in Emperor v. Abdul Hamid A.I.R. 1923 Pat. 1. We may mention at once that we consider that very, different conditions prevail in the two countries. Here, in this country, where we have got definite statutes, we have to follow the same. The rules of the Common law of England or the legal maxims embodying certain judicial principles however wholesome they may be, cannot be engrafted upon the Penal Code. In order to consider whether or not the offences, referred to in Section 9, Salt Act, are, upon the fulfilment of certain conditions, offences under Section 117, I.P.C., we have to consider Section 9, Salt Act and read the same in conjunction with Sections 2, 5, 40 and 117, I.P.C.
19. Considerable emphasis has been laid upon the fact that Page 61 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined acts or omissions which amount to a criminal offence under the Salt Act have not been incorporated into the body of the Penal Code as separate or distinct offences. We agree that it is so, but we are clearly of opinion that this makes no difference. It would have made the Penal Code extremely cumbrous if the offences under the various special and local Acts were included as separate offences under the Penal Code and punishments separately provided form them in the said Code. To avoid repetition, provisions have been made in the Penal Code with reference to offence generally and distinct punishment has been provided for them in Sections 109 to 117, I.P.C.
* * *
21. Act 12 of 1882 is not a self-contained Act. The offences enumerated therein are not exhaustive. The number of offences under the Salt Act becomes enlarged having reference to the provision of Section 40 read with Sections 2 and 5 of the Code which we have already referred to. The offences mentioned in Section 9, Act 12 of 1882, were not new offences. They were offenses under the Salt Act of 1843. When the Penal Code was amended in 1870, the ambit of Section 117 became enlarged so as to include within its scope the offences under Section 9, Salt Act. The result was that where an offence under Section 9(a) by the public generally or by a number of persons exceeding ten was abetted, it satisfied all the conditions of an offence under S. 117, I.P.C.
* * *
29. Upon a consideration of the texts of the various statutes before us and the authorities dealing with the same, we unhesitatingly come to the conclusion that a person guilty of abetment of an offence under Section 9(a), Salt Act, may-be convicted and sentenced under Section 117, I.P.C. where it is proved that the act amounted to an abetment of the commission of an offend by the public generally or by any number or class of persons exceeding ten. We hold therefore Page 62 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined that Joti Prasad Gupta has been properly convicted and sentenced under Section 117, I.P.C."
[21] Thus, if the act is an offence under two different statutes wherein a mode of inquiry, investigation and trial are distinctly different, in that event, the subsequent and / or second F.I.R. cannot be said to be violative of Article 20(2) of the Constitution of India. When two Courts are vested with the power to try the offences under the two different Acts, both the offences are said to be independent to each other and has to be tried by the manner in which it is prescribed under the statute and thereby, this Court, while exercising powers under Section 482 of the Cr.P.C., cannot give any such direction which is contrary to the law.
The inherent powers of this Court under Section 482 of the Cr.P.C.
is to secure the ends of justice.
[22] At this stage, I may refer to and rely upon the decision of the Hon'ble Apex Court in the case of the State of Bombay vs. S. L. Apte reported in AIR 1961 Supreme Court 578, wherein the Bench having strength of four Judges had an occasion to decide the issue of double jeopardy with regard to the offence committed Page 63 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined under Section 409 of the Indian Penal Code and under Section 105 of the Indian Insurance Act. In the said decision, the facts of the case were that two accused persons holding key post in an Insurance Company found to have withdrawn approximately Rs.95,000/- , for which, no proper account of legitimate expenses of the company was furnished. Thus, both the accused persons prosecuted under Section 409 of the Indian Penal Code and also for the offence under Section 105 of the Indian Insurance Act. The learned Magistrate Court convicted and sentenced both the accused persons for both the offences with which they were charged. The accused therein, being aggrieved thereof, filed the appeal to the Court of Sessions Judge, Poona and the learned Sessions Judge, in its order, while confirming the conviction and sentence of the accused therein under Section 409 of the Indian Penal Code, set aside their conviction under Section 105 of the Indian Insurance Act. The learned Sessions Judge was of the opinion that proper sanction under Section 107 to prosecute under Section 105 of the Indian Insurance Act was not obtained. Subsequently, the Insurance Company obtained sanction of the Advocate General of the Bombay under Section 107 of the Indian Insurance Act and Page 64 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined filed a complaint in the Court of Magistrate, Poona against the two accused persons therein under Section 105 of the Indian Insurance Act. Upon receipt of the process, both the accused persons have appeared and filed an application praying, inter alia, that the complaint against them may be dismissed as being barred by Section 403(1) of the Cr.P.C., by reason of their previous conviction by the Magistrate for the same offence under the Insurance Act and their acquittal in respect thereof by the Sessions Judge. However, the learned Magistrate overruled the plea on the ground that the acquittal of the accused persons was not on the merits of the case, but for lack of sanction under Section 107 of the Indian Insurance Act. The trial then was proceeded and the evidence was led.
However, the learned Magistrate acquitted the accused persons on the ground that Article 20(2) of the Constitution of India and Section 26 of the General Clauses Act. The State of Bombay, being aggrieved thereof, approached the High Court. However, the appeal was dismissed by the High Court. With a grant of certificate and on that strength, the appeal was preferred by the State of Bombay before the Hon'ble Apex Court.
Page 65 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [22.1] In the aforesaid facts and circumstances, the Hon'ble Apex Court, after having considered the provisions of Article 20(2) of the Constitution of India, Section 26 of the General Clauses Act and Section 105 of the Indian Insurance Act, held thus as under:
"9. Turning to the main points urged before us, we may premise the discussion by stating that it was not disputed before us by learned Counsel for the State, as it was not disputed before the learned Judges of the High Court, that the allegations to be found in the original complaint in Criminal Case 82 of 1953 on which the conviction under S. 409 of the Indian Penal Code was obtained were similar to the allegations to be found in the complaint under S. 105 of the Indian Insurance Act. It should, however, be mentioned that there was not any complete identity in the statement of facts which set out the acts and omissions on the part of the respondents which were alleged to constitute the two offences - S. 409 of the Indian Penal Code and S .105 of the Insurance Act. For instance, in the complaint which has given rise to this appeal, the crucial paragraphs detailing the allegations are 12 and 13 of the complaint which run:
"12. The company submits that the accused has thus wrongfully obtained possession of Rs. 95,000 or having that property in his possession wrongfully withheld it or wilfully applied it to purposes other than those expressed or authorised by the Insurance Act, 1938, and committed an offence on the 9th August, 1952, under Section of the Insurance Act, 1938."
"13. The company through their Solicitors called upon the accused to explain his conduct within7 days from the receipt of the letter. The accused has failed and Page 66 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined neglected to reply to the said letters."
10. It is obvious that on these allegations alone the offence of criminal breach of trust could not be established as they lack any reference to any entrustment or to the dishonest intent which are the main ingredients of the offence of criminal breach of trust. But to this point about the difference in the ingredients of the two offences we shall revert a little later.
11. Even assuming that the allegations to be found in the two complaints were identical, the question, however, remains whether to attract the ban imposed by either Art. 20(2) of the Constitution or s. 26 of the General Clauses Act on a second punishment, it is sufficient that the allegations in the two complaints are substantially the same or whether it is necessary further that the ingredients which constitute the two offences should be identical.
12. We shall first take up for consideration Art. 20(2) of the Constitution whose terms we shall repeat:
"20. (2) No person shall be prosecuted and punished for the same offence more than once."
13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of S. 105 of the Insurance Act and S. 405 of Indian Penal Code (S. 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary Page 67 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined ingredients are common they differ in the following:
(1) Whereas under S. 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", under S. 105 of the Insurance Act the entrustment or dominion over property is unnecessary it is sufficient if the manager, director, etc. "obtains possession" of the property.
(2) The offence of criminal breach of trust (S. 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done with a dishonest intention, but S. 105 of the Insurance Act postulates no intention and punishes as an offence the mere withholding of the property-whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made. In these circumstances it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the respondents were prosecuted on the complaint of the company charging them with an offence under S. 105 of the Insurance Act.
14. This aspect of the matter based on the two offences being distinct in their ingredients, content and scope was not presented to the learned Judges of the High Court, possibly because the decisions of this Court construing and explaining the scope of Art. 20(2) were rendered later. In Om Prakash Gupta v. State of U.P., 1957 SCR 423, the accused, a clerk of a municipality had been convicted of an offence under S. 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local authority and the conviction had been affirmed on appeal, by the Sessions Judge and in revision by the High Page 68 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Court. The plea raised by the accused before this Court, in which the matter was brought by an appeal with special leave, was that S. 409 of the Indian Penal Code had been repealed by implication by the enactment of sub-sections (1)
(c) and (2) of S. 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type. This Court repelled that contention. It analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions, held that there was no repeal of S. 409 of the 'Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act. It was the application of this decision and the ratio underlying it in the context of Art. 20(2) of the Constitution that is of relevance to the present appeal. The occasion for this arose in State of Madhya Pradesh v. Veereshwar Rao, 1957 SCR 868. The respondent was a tax-collector under a municipality and was prosecuted for offences among others under S. 409 of the Indian Penal Code and S. 5(2) of the Prevention of Corruption Act for misappropriation of sums entrusted to him as such tax- collector. By virtue of the provision contained in S. 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate. The Special Judge found the accused guilty of the offence under S. 409 of the Indian Penal Code and convicted him to three years' rigorous imprisonment but as regards the charge under S. 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non-compliance with the rules as to investigation prescribed by the latter enactment. The respondent appealed to the High Court against this conviction and sentence under S. 409 of the Indian Penal Code and there urged that by reason of his acquittal in respect of the offence under S. 5(2) of the Prevention of Corruption Act, his conviction under S. 409 of the Indian, Penal Code could not also be maintained, the same being barred by Art. 20(2) of the Constitution. The High Court of Page 69 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined Madhya Bharat accepted this argument and allowed the appeal and the State challenged the correctness of this decision by an appeal to this Court. Allowing the appeal of the State, Govinda Menon, J., delivering the judgment of the Court observed:
"This Court has recently held in Om Prakash Gupta v. The State of U.P. 1957 SCR 423 that the offence of criminal misconduct punishable under S. 5(2) of the Prevention of Corruption Act, II of 1947, is not identical in essence, import and content with an offence under S. 409 of the Indian Penal Code In view of the above pronouncement, the view taken by the learned Judge of the, High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under S. 409 of the Indian Penal Code, even if the respondent has been acquitted of an offence under S. 5(2) of the Prevention of Corruption Act, II of 1947.... The High Court also relied on Art. 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause) embodied in Art. 20 cannot apply."
Before leaving this part of the case we might also point out that a similar view of the scope of the rule as to double- jeopardy has always been taken by the Courts in America. The words of the Vth Amendment where this rule is to be found in the American Constitution are:
"Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb." and it will be noticed that there as well, the ban is confined to a second prosecution and punishment for the same Page 70 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined offence. Willoughby after referring to the words quoted in the Fifth Amendment says:
"Cases may occur in which the same act ma y render the actor guilty of two distinct offences; In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offence in bar to a conviction for the other"(1). In Albrecht v. United States, (1928) 273 U. S. 1:71 Law Ed 505, Brandeis, J., speaking for a unanimous Court said:
"There is a claim of violation of the Vth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offences. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction."
15. If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution being applicable.
16. The next point to be considered is as regards the scope of S. 26 of the General Clauses Act. Though S. 26 in its opening words refers to "the act or omission constituting an Page 71 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence,". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents are not being sought to be punished for "the same offence" twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable."
[23] In the instant case, although the accused and the applicants are the same in both the F.I.Rs. even the disputed land is also the same, however, the offence of the land grabbing of the second F.I.R. is punishable under the Special Act i.e. the Land Grabbing Act, for which, as discussed hereinabove, the Special Court has been constituted empowering the said Court to adopt its own procedure by further vesting the power to grant relief under the civil law as well as the criminal law. Under the Special Act, even the method of lodgment of F.I.R. and the investigation thereof is also prescribed to a Designated Officer, thus, the offence committed under the Special Act is quite different in all senses with regard to investigation, inquiry and trial as compared to the General Criminal Law. Thus, the basic concept of criminal Page 72 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined proceedings under the General Criminal Law and the one under the Land Grabbing Act is materially different. The Special Court constituted under the Land Grabbing Act is meant only to try the offence under the land grabbing. The offences those are alleged in the first F.I.R. under the Indian Penal Code is to be tried as per the provisions of Section 4(1) of the Cr.P.C. and is triable by the learned Judicial Magistrate First Class. Under the circumstances, in my considered opinion, it is not possible for this Court to club the investigation of the second F.I.R. as a supplementary chargesheet with the first F.I.R. I say so because, as stated hereinabove, both the offences falling under the different statutes and thereby, both the offences shall have to be investigated and tried as per the procedure prescribed under the respective Act. If the offences committed under the second F.I.R. i.e. the Land Grabbing Act is directed to be clubbed with the first F.I.R. of the Indian Penal Code, it would be amounting to conferring power of Special Court upon the Magistrate Court to try the offence under the Special Act which is contrary to the provisions of the Land Grabbing Act. This Court cannot give any such direction which is otherwise contrary to the law. The decision of the learned Magistrate, if the two offences are Page 73 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined clubbed and adjudicated together, would be without jurisdiction being contrary to the provisions of Section 4(2) of the Cr.P.C. and the provisions of the Land Grabbing Act. In my considered opinion, therefore, offences falling under the different statutes cannot be said to be one and / or the same and thereby, cannot be clubbed together in exercise of powers under Section 482 of the Cr.P.C. The accused cannot be allowed to take benefit under the principle of "double jeopardy". The shelter of the provisions of Article 20(2) of the Constitution of India cannot be extended to the accused if the offence has been committed under the two different statutes although on an overlapping set of allegations between the same parties.
[24] The Hon'ble Apex Court in the case of Amitbhai Anilchandra Shah (supra), has, in no uncertain terms, held that administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. The Hon'ble Apex Court has further held that it is definitely a daunting task. It is further held that responsibility vested on the Court of law to protect Page 74 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined and shield the rights of both. Keeping in mind the said observations, in the instant case, if the second F.I.R. is quashed under the Land Grabbing Act and / or investigation is directed to be clubbed with the first F.I.R., in that event, a serious prejudice will be caused to the complainant. I say so because, under the Land Grabbing Act, the Special Court has been vested with the special powers to decide the case on criminal as well as civil side and is also empowered to restore the possession of the land. Thus, the right has been created in favour of the complainant not only to seek offender to be punished, but to get back the possession of the land.
Therefore, if the second F.I.R. is quashed, the right of the complainant, under the Land Grabbing Act, would completely frustrate and if the investigation is clubbed with the first F.I.R., in that event, the Court dealing with the offence of the first F.I.R.
under the Indian Penal Code will not be competent to try the case for the offence under the Land Grabbing Act. Thus, the statutory right of the complainant would be frustrated. Accordingly, this Court, while exercising the powers under Section 482 of the Cr.P.C., would not be in a position to pass any such order whereby the right created under the Special statute is frustrated.
Page 75 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined [25] So far as the decision relied upon by the learned counsel appearing for the applicants in the case of Tarak Dash Mukherjee (supra) is concerned, the Hon'ble Apex Court had an occasion to deal with two F.I.Rs. between the same parties in respect of the same set of facts and the allegations, more particularly, under one common Act i.e. the Indian Penal Code. The facts of the present case and the facts of aforesaid decision are materially different inasmuch as in the instant case, although the parties and the allegations are the same, but gives rise of the offence under the different statutes i.e. one under the Indian Penal Code and another under the Special Act i.e. the Gujarat Land Grabbing Act. Thus, in my considered opinion, there is a material change in facts and hence, the ratio in the case of Tarak Dash Mukherjee (supra) is not applicable to the facts of the present case.
[26] In view of the foregoing discussion, in my considered opinion, the impugned F.I.R. for the offence under the Land Grabbing Act cannot be said to be second and / or subsequent F.I.R. with reference to the first F.I.R. which is under the Indian Penal Code. The offence alleged under both the Acts are materially Page 76 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025 NEUTRAL CITATION R/CR.MA/20902/2021 CAV JUDGMENT DATED: 05/02/2025 undefined different, not only that, but the manner of investigation, inquiry and trial of both the offences are also independent to each other and thus, it cannot be said to be the same and / or one offence and therefore, clubbing of the second F.I.R. for the offence under the Land Grabbing Act with the first F.I.R. for the offence under the Indian Penal Code is also impermissible in view of the provisions of Section 4(2) of the Cr.P.C. read with Sections 7, 9, 11 and 12 of the Gujarat Land Grabbing Act.
I answer all the questions accordingly.
[27] For the foregoing reasons, present applications are bereft of any merit and thereby, deserve to be dismissed and are, accordingly, dismissed. Interim relief, if any, stands vacated forthwith. Rule is discharged.
(NIRAL R. MEHTA,J) CHANDRESH Page 77 of 77 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Thu Feb 13 2025 Downloaded on : Sat Feb 15 01:50:49 IST 2025