Gujarat High Court
Navinkumar Hargovindbhai Patel & 2 vs State Of Gujarat & on 1 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/32470/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 32470 of 2016
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NAVINKUMAR HARGOVINDBHAI PATEL & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Applicant(s) No. 1 - 3
G H VIRK, ADVOCATE for the Respondent(s) No. 2
MS. THAKORE, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/03/2017
ORAL ORDER
1. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused Nos.1,2 and 3, seek to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.I-192 of 2016 registered with the Umra Police Station, District: Surat for the offence punishable under sections 406,420, 465, 467, 471 and 120(B) of the Indian Penal Code.
2. The dispute is between the partners. The dispute led to filing of a complaint by one of the partners in the court of the learned Additional Chief Judicial Magistrate, Surat for the offence punishable under sections 409, 406, 420, 465, 467, 468, 471, 120(B) read with sections 114 and 34 of the Indian Penal Code. The learned Magistrate, by his order dated Page 1 of 29 HC-NIC Page 1 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER 21.11.2015, directed the police to investigate the complaint under section 156(3) of the Indian Penal Code. The order passed by the learned Magistrate culminated in the registration of the M. Case No.01 of 2015 at the Pandesara Police Station, Surat. At the end of the investigation, the police filed the charge-sheet and the charge-sheet culminated in the Criminal Case No.12574 of 2016, which is pending, as on date, in the court of the learned Additional Chief Judicial Magistrate, Surat. The respondent No.2 herein, thereafter, filed one another FIR, which is the subject matter of this application alleging that the applicants herein forged his signatures in the papers of the loan agreement and produced the same before the HDFC Bank. On the strength of such documents, containing bogus signatures, an amount of Rs.2,90,20,000/- was obtained as a mortgage loan. It is alleged that instead of diverting the money into the partnership firm, the same was utilized for their personal use.
3. The applicants seek to quash the first information report in question substantially on the ground that the same is a second FIR and could not have been filed by the respondent No.2. The submission is that what is alleged in the second FIR was within the knowledge of both, the first informant as well as the Investigating Agency. The act complained in the second FIR could have been made the subject matter of investigation in the first FIR itself. There was no need to file a second FIR. The learned counsel would submit that it is the police, who brought to the notice of the first informant, in the course of the investigation of the first FIR, that the signatures of the first informant were forged on certain documents produced before the HDFC Bank. It is pointed out that even while opposing the Page 2 of 29 HC-NIC Page 2 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER bail application filed by the applicants in connection with the first FIR, there is a reference of the allegations of the present FIR in the affidavit filed by the Investigating Officer. The learned counsel, first invited my attention to page-23, which is the last part of the FIR in question. Thereafter, he invited my attention to page-79, which is the affidavit filed by the Investigating Officer for the purpose of opposing the plea of bail on the part of the applicants and, lastly, the learned counsel invited my attention to page-110 of the paper book, which is a part of the charge-sheet filed in connection with the first FIR.
4. The free English translation of the document, which is at page-79, referred to above, reads as under;
"From the manner in which the point wise details displaying the criminal mentality of the Applicant/Accused are mentioned the word criminal mentality appears to be too less, and in addition thereto the use of word Hardcore criminal for the accused also seems to be too less, as the accused did not stop at the same, and in furtherance thereof in addition of the 2 properties he executed Registered Sale Deeds pertaining to 17 other properties of the Partnership Firm in his favour, by adopting the very same modus operandi and thereby misappropriated the valuable properties of the Partnership Firm, which he thereafter Mortgaged those properties with the HDFC Bank, Ghod dod road, Surat and availed of a loan to the tune of Rs 1,48,00,000/-, and the amount of Rs 1,48,00,,OOO/- was thereafter taken by the accused into his another firm named Akash Architect, and in addition to the said amount other amounts were also taken by the applicant in his personal use. The complainant honestly believes that apart from the abovementioned there can be no further evidence in such offences.
List of the Registered Sale Deeds is as mentioned herein below.
Page 3 of 29 HC-NIC Page 3 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER Sr. Date Sale Deed Purchaser Seller No. No. 1 12/02/15 1049/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 2 12/02/15 1050/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 3 12/02/15 1051/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 4 12/02/15 1052/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 5 12/02/15 1053/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 6 12/02/15 1054/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 7 12/02/15 1055/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 8 12/02/15 1056/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 9 12/02/15 1057/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 10 12/02/15 1058/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 11 12/02/15 1059/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Page 4 of 29 HC-NIC Page 4 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER Firm M/s. Shhlok Enterprise. 12 18/02/15 1233/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 13 18/02/15 1234/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 14 18/02/15 1235/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 15 18/02/15 1236/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 16 18/02/15 1237/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 17 18/02/15 1238/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 18 18/02/15 1239/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise. 19 18/02/15 1240/2015 Navin H. Patel Navinbhai Patel on behalf of and for the Partnership Firm M/s. Shhlok Enterprise.
5. The free English translation of the document, which is at page-110, referred to above, i.e., the counter of the charge- sheet, reads as under;
"As per the Partnership Deed entered into between the partners the accused Navin Hargovindbhai Patel was authorized by the Partners to perform the administrative work, execution of Deeds and to do the acts in the Page 5 of 29 HC-NIC Page 5 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER interest of all the Partners. Navinbhai Patel being authorized on behalf of all the Partners as per the Partnership Deed, did not provide proper financial details and he indulged into accounting irregularities, owing to which the complainant demanded the accounting details which resulted into a settlement between the parties. But as the Accused Navinbhai had malafide intentions he informed that he was not agreeable to the settlement deed, and in furtherance thereof he sold the two properties of the Partnership Firm being office No. 101, situated on the First Floor of Shhlok Arcade, and office No. 209, situated on the Second Floor of Shhlok Arcade, to himself, wherein the Accused had executed two sale Deeds in his favour amounting to Rs 6,21,900/- and 13,08,600/- respectively, totaling to Rs 19,30,500/-, wherein the accused had misused the authority given by the Partners, and inspite of the fact that the complainant had withdrawn the authority given by him, the accused without payment of any consideration to the Partnership Firm Shhlok Enterprise executed the Sale Deed in his favour, and thereafter mortgaged those properties by submitting the said Sale Deeds with the HDFC Bank Ghod Dod Branch, and obtained the loan to the tune of Rs 6,25,000/-. and 6,25,000/- totaling to Rs 12,50,000/- thereby the amount was pocketed by the accused in all aggregating to Rs 31,80,500/-. In addition to the same other 16 properties of Shhlok Enterprise which were Shops/Flats pertaining to which the Sale Deeds were executed by the Accused in his favour, which again were mortgaged with the HDFC Bank, and a Mortgage loan to the tune of crores of Rupees was availed in the name of the partnership firm. The properties of the Partnership Firm Shhlok Enterprise were mortgaged with the Nasik Merchants Cooperative Bank, Surat Branch by the accused with the consent of all the partners and a Mortgage loan to the tune of Rs 10 crores was obtained. And if the bank statement of the current account of the Partneship Firm being CA/179 is perused it shows that the accused had by misusing the authority given to him had siphoned off the amounts to the tune of crores of rupees which was inclusive of cash as well as properties.
Thereby, the sale deeds in connection with 2 properties which were allotted to the complainant as per the Settlement Deed dated 07.05.2014, were executed by Page 6 of 29 HC-NIC Page 6 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER the accused in his favour, and being the authorized partner Navinbhai misappropriated an amount of Rs 31,80,500/- and committed criminal breach of trust and cheating with the complainant, and in addition to the abovementioned the accused also executed sale deeds in his favour pertaining to 16 properties of the Partnership Firm, and thereafter had obtained mortgage loan based upon those Sale Deeds from the HDFC Bank to the tune of crores of rupees. Thereby the accused had misappropriated the properties and cash of the Partnership Firm and had committed the offence.
6. The learned counsel lastly pointed out the statement recorded by the Investigating Officer dated 08.01.2016 in connection with the first FIR. The free English translation of the same reads as under;
"My name is Manoj Hasmukhbhai Singapuri, Aged 48 years, Occupation: Business, residing at Flat No.18, Saidwar New Citylite road, Umra, Surat Mobile No.9825123113.
On being asked I further state that my earlier statements which were recorded, have been read over to me, and they are correct . On being further asked I state that today you have shown me the signature on the last page of the agreement pertaining to the business secure loan account no.81512532, dated 25.06.2015 obtained from the HDFC Bank. Upon being inquired regarding the said signature I state that I have not given any signature to Navinbhai for availing of the loan which has been availed by him from the HDFC Bank by producing 18 documents. The signature bearing my name has not been made by me."
7. In such circumstances referred to above, the learned counsel appearing for the applicants would submit that the second FIR is not maintainable and the same deserves to be quashed.
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R/CR.MA/32470/2016 ORDER
8. He submitted that assuming for the moment that some investigation needs to be carried out as regards the allegations levelled in the first information report in question, the same can be done and a supplementary charge-sheet can be filed in the Criminal Case No.12574 of 2016, pending in the court of the learned Additional Chief Judicial Magistrate, Surat. However, in any circumstances, there cannot be a second prosecution.
9. On the other hand, this application has been vehemently opposed by Mr. G.H. Virk, the learned counsel appearing for the respondent No.2-original first informant and Ms. Thakore, the learned APP appearing for the State.
10. Both the learned counsel submitted that the first information report in question is for a distinct and independent offence, and has nothing to do with the first FIR, which has culminated in the criminal case referred to above.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report in question could be termed as a second FIR and is maintainable or not. The law as regards the maintainability of the second FIR is well settled.
12. The Supreme Court in the case of Amitbhai Anilchandra Shah vs. C.B.I & Anr., AIR 2013 SC 3794 has Page 8 of 29 HC-NIC Page 8 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER considered at length the law on the subject by making a reference of its earlier decisions on the subject which includes T.T.Antony vs. State of Kerala & Ors., AIR 2001 SC 2631 as well as Babubhai vs. State of Gujarat & Ors., 2010 (12) SCC 254.
32. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Page 9 of 29 HC-NIC Page 9 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It Page 10 of 29 HC-NIC Page 10 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER 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.
33. Mr. Rawal, learned ASG, by referring T.T. Anthony (supra) 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 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 Page 11 of 29 HC-NIC Page 11 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER
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. 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:-
(i) The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter;
(ii) 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
(iii) 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. In view of the factual situation as projected by the CBI 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)].
35. 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 Page 12 of 29 HC-NIC Page 12 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER
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
36. 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.
37. 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 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 Page 13 of 29 HC-NIC Page 13 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER 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.
38. In Kandimalla Subbaiah (supra), 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.
39. In Cheemalapati Ganeswara Rao (supra), 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 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 Page 14 of 29 HC-NIC Page 14 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER 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. &.
42. In the case of 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 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.Page 15 of 29
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13. I may also quote with profit a decision of the Supreme Court in the case of Surender Kaushik and others v. State of U.P. and others, reported in 2013 Cri.L.J. 1570, wherein in paras 13 to 25, the Supreme Court held as under :
13. For apposite appreciation of the issue raised, it is necessitous to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited. In Ram Lal Narang (supra), this Court was dealing with the facts and circumstances of a case where two FIRs were lodged and two charge- sheets were filed. The Bench took note of the fact that the conspiracy which was the subject-matter of the second case could not be said to be identical with the conspiracy which was the subject- matter of the first one and further the conspirators were different, although the conspiracy which was the subject-matter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subject-matter of the second case. After adverting to the various facets, it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view, the Court did not find any flaw in the investigation on the basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, came to hold that 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 and, therefore, 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 Page 16 of 29 HC-NIC Page 16 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER more cognizable offences. It was further observed that 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 of the Code.
15. It is worth noting that in the said case, the two-Judge Bench explained and distinguished the dictum in Ram Lal Narang (supra) by opining that the Court had indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It further proceeded to state that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different since the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. Thereafter, the Bench explained thus: -
The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs the first and the second is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.
16. In Upkar Singh (supra), a three-Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony (supra). The larger Bench took note of the fact that a complaint was lodged Page 17 of 29 HC-NIC Page 17 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER by the first respondent therein with Sikhera Police Station in Village Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making certain allegations against the appellant therein and some other persons. On the basis of the said complaint, the police had registered a crime under Sections 452 and 307 of the IPC. The appellant had lodged a complaint in regard to the very same incident against the respondents therein for having committed offences punishable under Sections 506 and 307 of the IPC as against him and his family members. As the said complaint was not entertained by the concerned police, he, under compelling circumstances, filed a petition under Section 156(3) of the Code before the Judicial Magistrate, who having found a prima facie case, directed the concerned police station to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction, Crime No. 48-A of 1995 was registered for offences punishable under Sections 147, 148, 149 and 307 of the IPC. Challenging the direction of the Magistrate, a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge, a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court, following its earlier decision in Ram Mohan Garg v.
State of U.P.[10], dismissed the revision. While dealing with the issue, this Court referred to paragraph 18 of T.T. Antony (supra) and noted how the same had been understood: -
11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter- case is not registrable and no investigation based on the said second complaint could be carried out.Page 18 of 29
HC-NIC Page 18 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER
17. After so observing, the Court held that the judgment in T.T. Antony (supra) really does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony (supra) and explained thus:-
Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala has precluded an aggrieved person from filing a counter-case as in the present case. To arrive at such a conclusion, the Bench referred to paragraph 27 of the decision in T.T. Antony (supra) wherein it has been stated that 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 of the Code or under Articles 226/227 of the Constitution.
Thereafter, the three-Judge Bench ruled thus:
In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does Page 19 of 29 HC-NIC Page 19 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.
18. Be it noted, in the said verdict, reference was made to Kari Choudhary v. Sita Devi[11], wherein it has been opined that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the same investigating agency. Reference was made to the pronouncement in State of Bihar v. J.A.C. Saldanha[12] wherein it has been highlighted that the power of the Magistrate under Section 156(3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the Police Act.
19. It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang (supra) and stated thus: -
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) also shows that even in cases where a prior complaint is already registered, a counter-
complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court Page 20 of 29 HC-NIC Page 20 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER did not express any opinion either way.
20. Explaining further, the Court observed that if the law laid down by this Court in T.T. Antony (supra) is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.
21. In Pandurang Chandrakant Mhatre (supra), the Court referred to T.T. Antony (supra), Ramesh Baburao Devaskar v. State of Maharashtra[13] and Vikram v. State of Maharashtra[14] and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopaedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW-5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.
22. In Babubhai (supra), this Court, after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in Page 21 of 29 HC-NIC Page 21 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court expressed the view that the High Court had correctly reached the conclusion that the second FIR was liable to be quashed as in both the FIRs, the allegations related to the same incident that had occurred at the same place in close proximity of time and, therefore, they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the Page 22 of 29 HC-NIC Page 22 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise Page 23 of 29 HC-NIC Page 23 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance.
14. I may also quote with profit a decision of the Supreme Court in the case of Anju Chaudhary v. State of Uttar Pradesh and another, reported in 2013(3) GLH 237, wherein the Supreme Court held as under :
23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter- complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter-
complaint is permissible.
41. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different Page 24 of 29 HC-NIC Page 24 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
42. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences committed in the course of the same transaction.
15. What amounts to the 'same transaction' has been very succinctly explained by Hegde, J. (as His Lordship then was) in the case of C.N.Krishna Murthy v. Abdul Subhan, reported in AIR 1965 Mysore 128. Of course, the term 'same transaction' was interpreted keeping in mind Section 235 of the Code of Criminal Procedure (old Code) corresponding to Section 220 of the Code of Criminal Procedure (new Code). His Lordship observed thus :
"The word 'transaction' is not intended to be interpreted in any artificial or technical sense; commonsense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or Page 25 of 29 HC-NIC Page 25 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER abandoned, If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case, It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary."
16. Therefore, it is clear, to constitute same transaction, the series of acts alleged against the accused must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end. It is, therefore, necessary to find out whether the offences alleged against the accused could be stated to be one committed during the same transaction.
17. The law recognizes a common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 Cr.P.C. The expression 'same transaction', from its very nature, is incapable of exact definition (Anju Chaudhary (supra); Mohan Baitha v. State of Bihar, (2001)4 SCC 350). The distinction between two FIRs relating to the same incident, and two FIRs relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai v. State of Gujarat, (2010)12 SCC 254). The merits of each case must be considered to determine whether a subsequently registered FIR is a second FIR relating to the same incident or Page 26 of 29 HC-NIC Page 26 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and fact depending on the merits of a given case (Anju Chaudhary (supra)). The test, to determine whether two FIRs can be permitted to exist, is whether the two incidents are identical or not (Ram Lal Narang v. State (Delhi Administration), (1979)2 SCC 322).
18. The concept of 'sameness' has been given a restricted meaning. In order to examine the impact of one or more FIRs, the Court has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence; and whether they are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. It is only if the second FIR relates to the same cause of action, the same incident, there is sameness of occurrence and an attempt has been made to improvise the case, would the second FIR be liable to be quashed. In cases where every FIR has a different spectrum, and the allegations made are distinct and separate, it may be regarded as a counter complaint, but it cannot be stated that an effort has been made to improve the allegations that find place in the first FIR or that the principle of 'sameness' is attracted. (Babubhai (supra); Surendra Kaushik v. State of Uttar Pradesh, 2013 Cri L.J. 1570).
19. In view of the above, I have reached to the conclusion that there is commonality in both the FIRs and they emerged Page 27 of 29 HC-NIC Page 27 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER from the same transactions. It is not possible for me to take the view that they do not form part of the same transaction and, therefore, there could be a subsequent FIR.
20. A close reading of the entire decision of the Supreme Court in the case of Amitbhai Anilchandra Shah (supra) would reveal that the entire conspiracy to kill a person by name Sohrabuddin, his wife Kausharbi and one Tulsiram Prajapati was covered in the first FIR dated 1st February 2010. The Supreme Court took the view, in light of the factual details, that since the entire larger conspiracy was covered in the first FIR there could not have been a second FIR for the murder of Tulsiram Prajapati. In such circumstances, the Supreme Court finally quashed the second FIR dated 29th April 2011, holding that the killing of Tulsiram Prajapati was a part of the same series of cognizable offence forming part of the first FIR. As a consequence, the charge-sheet which was filed in pursuance of the second FIR was ordered to be treated as supplementary charge-sheet in the first FIR."
21. Having regard to the materials on record and the free English translation referred to above, I have reached to the conclusion that the FIR in question is a second FIR and is not maintainable in law. The allegations levelled in the second FIR were looked into in the course of the investigation of the first FIR and such allegations could have been made a part and parcel of the charge-sheet, which came to be filed and which culminated in the criminal case referred to above. For some reason or the other, if the allegations levelled in the present FIR are not forming a part of the charge-sheet already filed, Page 28 of 29 HC-NIC Page 28 of 29 Created On Mon Aug 14 02:13:16 IST 2017 R/CR.MA/32470/2016 ORDER then a supplementary charge-sheet shall be filed in the criminal case which is already pending.
22. In the result, this application is allowed. It is declared that the FIR in question is not maintainable being a second FIR. There cannot be a separate prosecution for the allegations which are levelled in the FIR in question. However, a supplementary charge-sheet can be filed with regard to the allegations levelled in the second FIR in the criminal case referred to above, already pending before the court concerned.
(J.B.PARDIWALA, J.) Vahid Page 29 of 29 HC-NIC Page 29 of 29 Created On Mon Aug 14 02:13:16 IST 2017