Gujarat High Court
Modnath Vaidhyanath Mishra vs State Of Gujarat & on 30 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/6370/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6370 of 2013
[On note for speaking to minutes of order dated 05/05/2017 in
R/CR.MA/6370/2013 ]
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MODNATH VAIDHYANATH MISHRA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR P B KHANDHERIA, ADVOCATE for the Applicant(s) No. 1
MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/06/2017
ORAL ORDER
This is a note for speaking to minutes pointing out that inadvertently, the name of Ms. Shruti Pathak, the learned Additional Public Prosecutor, who appeared for the State, has not been shown in the appearance.
The Registry shall effect the necessary correction and show the name of Ms. Shruti Pathak, the learned Additional Public Prosecutor appearing for the State.
The Note is disposed of.
(J.B.PARDIWALA, J.)
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R/CR.MA/6370/2013 CAV JUDGMENT
-IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 6370 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ MODNATH VAIDHYANATH MISHRA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MR P B KHANDHERIA, ADVOCATE for the Applicant(s) No. 1 MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :05/05/2017 CAV JUDGMENT
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant, original accused, seeks to invoke Page 1 of 45 HC-NIC Page 3 of 47 Created On Sat Jul 01 00:24:43 IST 2017 3 of 47 R/CR.MA/6370/2013 CAV JUDGMENT the inherent powers of this Court praying for the following reliefs: "(A) YOUR LORDSHIPS be pleased to call for the records and proceedings of FIR being C.R. NO.I 131/2009 lodged with Ambaji Police Station, DistrictBanaskantha and after perusing the same be pleased to quash the impugned FIR and all further proceedings in pursuance thereto qua the petitioner and further be pleased to direct that as a consequence, the charge sheet no.9/2009 dated 19.10.2010 filed in pursuance to the impugned FIR being C.R. No.I131/2009 be treated as supplementary charge sheet in connection with first FIR being C.R. No.I101/2009, in the interest of justice;
(B) YOUR LORDSHIPS be pleased to stay the further proceedings of the impugned FIR being C.R. No.I 131/2009 lodged with Ambaji Police Station, DistrictBanaskantha, pending the admission, hearing and final disposal of this application; (C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit by this Hon'ble Court, in the interest of justice."
2. The facts giving rise to this application may be summarized as under:
3. The applicant herein was serving as a Principal of a College by name Ambaji Arts College at Ambaji. In the year 2009, the respondent No.2 herein lodged a First Information Report with the Ambaji Police Station, District: Banaskantha bearing C.R. No. I101 of 2009 for the offence punishable under Section 409, 420, 466, 477(A) and 120B of the IPC.
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4. The FIR was lodged on 01.10.2009. The offence as alleged is said to have been committed during the period between 29.06.2007 and 23.10.2008. The investigation of the said FIR culminated in filing of the chargesheet dated 11.06.2010. The case of the prosecution is that the applicant herein by abusing his position as the Principal of the college hatched a conspiracy and committed criminal misappropriation.
5. It appears that thereafter on 26th November, 2009 one another FIR came to be registered against the applicant and other co accused with the Ambaji Police Station for the offence punishable under Section 13(1)(C) (D) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 406, 409, 467, 477(A), 204 and 120B of the IPC. This FIR was registered for the offence alleged to have been committed during the period between 2003 and 2009. The investigation culminated in the filing of the chargesheet and the filing of the chargesheet culminated in the Sessions Case No.10 of 2010.
6. This application has been preferred with a Page 3 of 45 HC-NIC Page 5 of 47 Created On Sat Jul 01 00:24:43 IST 2017 5 of 47 R/CR.MA/6370/2013 CAV JUDGMENT prayer that the chargesheet which came to be filed in connection with C.R. No.I131 of 2009 should have been treated as a supplementary chargesheet in connection with the FIR being C.R. NO. I101 of 209. To put in other words the case of the applicant appears to be that there cannot be two prosecutions for the offences alleged to have been committed in the course of one transaction over a period of time.
7. The picture that emerges on cumulative assessment of the materials on record is as under: C.R. No.I101/2009 C.R. No. I131/2009 U/s.406, 409, 420, 466, 477A, U/s. 406, 409, 467, 477A, 204, 120(B) of IPC 120B of IPC and Sec. 13(1)(C) (D) of Prevention of Corruption Act Lodged on 1.10.2009 Lodged on 26.11.2009 Offence is committed during the Offence is committed during the period between 29.06.2007 and period between 2003 to 2009 23.11.2008 Allegations Allegation The petitioner was serving as During the period between 2003 Principal of Ambaji Arts to 2009, when the petitioner was College run by Shree Arasuri serving as Principal of Ambaji Ambaji Mata Devasthan Trust Arts College opened five bogus (for short 'the Trust'). The accounts. Four bogus accounts Trust is running Ambaji Arts were opened in Bank of Baroda, and Commerce College, BCA Ambaji and and bogus account in College, etc. Ambaji Arts and Dena Bank, Ambaji. The Commerce college (for short petitioner has misappropriate an 'the College') is also amount of Rs.2,18,56,000/ as affiliated to Dr. Babasaheb per chart shown below. Ambedkar Open University.
For misappropriating the amount, Various courses are run by the the petitioner has created College and the College is also forged documents and opened Page 4 of 45 HC-NIC Page 6 of 47 Created On Sat Jul 01 00:24:43 IST 2017 6 of 47 R/CR.MA/6370/2013 CAV JUDGMENT receiving grant from Dr. bogus accounts.
Babasahed Ambedkar Open The petitioner has opened bogus
University for running various accounts to deposit the
course. scholarship amount which was
received from the Government as
The grant received from Dr. grant.
Babasaheb Ambedkar Open
University was deposited in the Upon verification, it is found
bank accounts of the College that no such amount of
maintained at SBI and/or Dena scholarshi has been received by
Bank. the students. It is also found
that with a view to make big
The petitioner opened bank list of students, the petitioner
account no.230056704533 on has included the names of
23.06.2009 in SBI, Ambaji students who had studied in the
Branch. Before opening the college in past.
account, no permission/approval
of the Trust was taken by the The trust was not aware about
petitiner. the opening of aforesaid bogus
bank accounts.
The Bank account was operated
single handedly without the The above facts came to the
joint signature of the notice of the Trust only when
administrator of the Trust. auditor requested for supplying
There are various other bank certain details and upon special
accounts in SBI as well as Bank verification of accounts, the of Baroda of the Trust which Trust came to know about the are operated by joint signature opening of above five bogus bank of petitioner (being accounts and misappropriation of Principal ) and administrator amount of Rs.2,18,56,000/ in of the Trust. the following manner: The petitioner by misusing his Period Amt. In Lakhs post and position as 1.3.04 to 30.9.04Rs.108.42 Principal,misappropriated huge 1.2.04 to 30.9.09Rs.53.70 funds of thegrant received from 25.1.05 to 30.9.09Rs.28.81 Dr. Babasahed Ambedakar Open 8.2.04 to 30.9.09Rs.1.83 University from the account 23.1.07 to 30.9.09Rs.25.80 bearing No.30056704533 (of SBI) Total Rs.218.56 in the following manner: (I) On 13.04.2006Rs.39,400/
(ii) On 12.07.2006Rs.71,700/
(iii) On 11.12.2006Rs.65,900/
(iv) On 29.06.2007 Rs.1,34,000/
(v) On 4.01.2008Rs.1,16,500/
(vi) On21.10.2008Rs.1,47,500/
(vii) On31.12.2008Rs.58,900/
(viii) On17.06.2009Rs.36,900/
(ix) On 17.06.2009Rs.1,575/ Total Rs.6,72,375/ The petitioner thus has committed criminal breach of trust, cheating, misappropriated amount by using his post and position as Principal of the College, forged record of public Page 5 of 45 HC-NIC Page 7 of 47 Created On Sat Jul 01 00:24:43 IST 2017 7 of 47 R/CR.MA/6370/2013 CAV JUDGMENT register, made falsification of accounts and conspiracy with other accused persons.
Charge sheet is filed on Charge sheet is filed on 11.06.2010 19.02.2010 The case is committed to The case is committed to Sessions Court and is numbered Sessions Court and is numbered as Sessions Case No.3768/2010 as Sessions Case No.10/2010 Thus, is is clear that
(i) both the set of offences were committedat different time;
(ii) both the FIRs arose from different transactions.
(iii) Both the set of offences were not committed during the course of same transaction.
(iv) There is misappropriation of grant received from Dr. Ambedkar Open University in the FIR being C.R. No.I101/2009, whereas in FIR being C.R. No. I131/2009 (impugned FIR), there is misappropriation of grant given by Government towards scholarship of students.
Therefore, it cannot be said that the impugned FIR is second FIR and arises from same transaction. Therefore, the present petition on this ground alone may kindly be dismissed.
B. Petitioner has not approached this Hon'ble Court with clean hands.
The impugned FIR is of the year 2009. Charge sheet is filed in February 2010. The trial has begun long back. Evidence is led by parties. The process of examining the witnesses has started. Therefore, it is clear that after almost 4 years of filing of the FIR, the petitioner has filed the present petition for quashing of the impugned FIR.
C. Both the FIRs cannot be clubbed together Looking to gravity and different kind of charges and other factors, there is possibility of serious/capital punishment. There are also chances of conviction for the charges under the PC Act over and above the charges under IPC. If both the FIRs are clubbed, serious prejudice is likely to be caused to the complainant.
As per the provisions of Criminal Procedure Code, offences of same kind can be charged together only when the offences have occurred within a year. In the present case, the offence of C.R. No.I101/2009 is committed during the period between 29.06.2007 and 23.10.2008, whereas the offence of C.R. No.I Page 6 of 45 HC-NIC Page 8 of 47 Created On Sat Jul 01 00:24:43 IST 2017 8 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 131/2009 is committed during the period between 2003 to 2009. Thus, both the offences cannot be charged together.
As per the settled position of law, rival version in respect of same incident do take different shapes and in that event, lodgment of two FIRs is permissible. Counter FIR in respect of same or connected incident is permissible. Merely because the complainant lodged FIR against certain persons alleging fabrication of document and forgery, that would not debar other aggrieved persons from subsequently seeking Magistrate's direction under Sec. 156(#) for registration of FIR against some others including complainant relating to counter allegations. Subsequent counter FIR registered pursuant to Magistrate's direction u/s.156(3) Hence, not liable to be quashed.
It is also settled position of law that even where the police registering two FIRs and filing two final reports, is too technical a ground to quash charge."
8. Mr. Tolia, the learned counsel appearing for the applicant vehemently submitted that the second FIR for the same offence committed in the course of one transaction was not maintainable. According to Mr. Tolia, if the charge framed discloses one single conspiracy, although spread over several years and there is only one object of the conspiracy, and that is to misappropriate, the funds of the institution, then the several incidents of cheating in pursuance of conspiracy would not get splitted up into several conspiracies. Mr. Tolia, pointed out that the trial arising from the C.R. No.I101 of 2009 was going on before the learned Magistrate. However, on an Page 7 of 45 HC-NIC Page 9 of 47 Created On Sat Jul 01 00:24:43 IST 2017 9 of 47 R/CR.MA/6370/2013 CAV JUDGMENT application filed by the prosecution the same came to be transferred to the Court of the learned Sessions Judge as the learned Sessions Judge was conducting the trial arising from the C.R. No.I131 of 2009.
9. Mr. Tolia, has also filed written submissions. The submission are as under: "1. Provisions of law I. Cr.P.C.Sec. 154, 156, 157, 162, 169, 170, 173(2), 173(8).
II. Cr.P.C.Sec.221 and 300(2).
2. No successive FIR i. As per the above provisions, the second FIR for the same offence or different offences committed in the course of the transaction disclosed in the FIR is prohibited.
ii. As per allegations, the sole object of the conspiracy of the present petitioner was to cheat the college and siphon off the funds either in pursuance to the allegations leveled in first FIR or in Second FIR. Thus, the different sets of facts (i.e. stated in first prosecution and second prosecution) are in furtherance of that very criminal intention and cannot be separated and thus, "same offence".
Iii. Even second FIR specifically discloses its cause as receiving of special verification report (appointed in furtherance of first FIR). (pg. 29E last five lines) iv. Throughout it is the case of the prosecution in first FIR that the offence therein is not limited to what is stated in the first FIR but also extends to the transactions of five bogus accounts, huge funds including scholarship, government grant/s, etc. i.e. what is the crux of second FIR/prosecution.
v. Further, criminal case in pursuance to first Page 8 of 45 HC-NIC Page 10 of 47 Created On Sat Jul 01 00:24:43 IST 2017 10 of 47 R/CR.MA/6370/2013 CAV JUDGMENT FIR was pending before Ld. Magistrate. Hoever, the prosecution submitted an application to transfer the same to the Court of Ld. Sessions Judge as the second prosecution (arising out the same transaction) is pending before that Court. Thus, the prosecution believes both the prosecutions as connected with each other. Further, both the prosecutions are undisputedly not the cross case/version.
3. Second FIR is in furtherance of disclosure of first FIR a. Special Auditor was appointed viz. Vik H.P. Singh and Co., Chartered Accountant in pursuance to first FIR.
b. Audit report dated 10.10.2009 submitted to the Chairman of the Trust referes to details of all 6 bank accounts allegedly opened in clandestine manner. One account (No.30056704533) is (at item no.6 in report) subject matter of first FIR. Five such accounts are made subject matter of second FIR. Report is produced at AD2 along with these written submissions.
C. One order is passed by Chairman of the Trust dated 25.11.2009 referring to misuse of 6 above bogus accounts. This is again forming part of both the charge sheet. A copy of order dated 25.11.2009 is produced at AD3 along with these written submissions. The final report dated 25.09.2009 is also supplied separately as AD4 along with these written submissions.
d. Majority of the important documents forming part of charge sheet of first FIR are also forming part of charge sheet of second FIR like exchange of reports between trust and special Auditor, reply to certain queries, etc. some such documents are supplied separately as AD5 along with these written submissions.
e. Further, u/s 408 of Cr.P.C., the proceedings of first FIR/charge sheet is transferred to the Sessions Court (from the Court of Magistrate) vide order dated 26.04.2011 passed in Cr.M.A. No.465/2010. Related documents are supplied are supplied as AD6 Colly to these written submissions.
f. The issue was kept open as to whether to frame charge under the provisions of the PC Act in pursuance to first FIR/ Charge sheet. However Page 9 of 45 HC-NIC Page 11 of 47 Created On Sat Jul 01 00:24:43 IST 2017 11 of 47 R/CR.MA/6370/2013 CAV JUDGMENT subsequently, while framing charge afresh (before Magistrate, the charge was framed and trial had proceeded), the Hon'ble Sessions Judge has also framed/added charge under the same provisions of PC Act as in second FIR/charge sheet. Copy of charge framed in both the FIR/s/ Charge sheets are supplied as AD7 Colly. Therefore, the sessions Judge has prima facie believed sameness of offence alleged committed in the course of same transaction disclosed in both the FIRs.
g. Both the policy report/charge sheet is based on the signle conspiracy of the petitioner as alleged. The execution of the said conspiracy is through above referred/reported six bogus accounts, thus, again second report is nothing else but the same offence disclosed in first FIR. Even if the set of facts of the second FIR is considered as different offence, then also, it is committed in the course of transaction disclosed in the first FIR. Thus, second FIR is in fact further investigation of first FIR and at the best, it can be said to be supplementary charge sheet.
h. No prejudice to prosecution a. As it is prayed, second prosecution is required to be clubbed with the first prosecution and it is not prayed to quash the same. (prayer 7(A). b. As against this, petitioner has already suffered the consequences of detention for more than a period of three years in first FIR only because of the prosecution's case of it being a larger conspiracy including the set of facts/offences of second FIR.
4. Bar of Sec.300 a. Sec.300(1) of Cr.P.C. makes it clear that "......on the same facts for any other offence for which a different charge from one made against him might have been made under subsection (1) of Sec. 221 or for which he might have been convicted under subsection (2) thereof."
Thus, the test is not the different offence but, is "same facts". In criminal jurisprudence, same facts should be taken as criminal mind set giving rise to offence/s.
C. Further, it is pertinent to note the provision of Sec. 221 of Cr.P.C. which reads as under: "Section 221: Where it is doubtful what offence has been committed.
Page 10 of 45HC-NIC Page 12 of 47 Created On Sat Jul 01 00:24:43 IST 2017 12 of 47 R/CR.MA/6370/2013 CAV JUDGMENT (1) XXX (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it".
d. Thus, conjoint reading of Sec.300 (1) with Sec. 221(2) supports the submission of petitioner.
e. Further, the Hon'ble Apex Court in AIR 1957 SC 340 (FB) in para 7 has held as under:
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 Swaminrathnam, 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 vs. Emperor, and on the cast of Choragudi Venkatadari, In re, ILR 33 Mad 502. 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 sec. 120B, 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.
10. In support of his submissions, Mr. Tolia has placed reliance on the following decisions: Page 11 of 45 HC-NIC Page 13 of 47 Created On Sat Jul 01 00:24:43 IST 2017 13 of 47 R/CR.MA/6370/2013 CAV JUDGMENT
1. Amitbhai Anilchandra Shah v.
Central Bureau of Investigation and Another.
2. AIR 1957 SC 340 (Para7) S. Swaminathan vs. State of Madras
3. (2011) 2 SCC 703 (Para 4 and 5) Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao
4. (2010) 12 SCC 254 (para 16) Babubhai Vs. State of Gujarat and others
5. 2001 (6) SCC 181 (Para27) T.T. Antony vs. State of Kerala
11. In such circumstances referred to above Mr. Tolia prays that this Court may direct the learned Sessions Judge to club both the cases and start recording common evidence.
12. On the other hand, this application has been vehemently opposed by Ms. Archana Acharya, the learned counsel appearing for the respondent No.2 i.e. the original first informant. Ms. Acharya has also tendered written submissions. The same are as under:
(i) Both the set of offences were committedat Page 12 of 45 HC-NIC Page 14 of 47 Created On Sat Jul 01 00:24:43 IST 2017 14 of 47 R/CR.MA/6370/2013 CAV JUDGMENT different time;
(ii) Both the FIRs arose from different transactions.
(iii) Both the set of offences were not committed during the course of same transaction.
(iv) There is misappropriation of grant received from Dr. Ambedkar Open University in the FIR being C.R. No.I101/2009, whereas in FIR being C.R. No. I131/2009 (impugned FIR), there is misappropriation of grant given by Government towards scholarship of students.
Therefore, it cannot be said that the impugned FIR is second FIR and arises from same transaction. Therefore, the present petition on this ground alone may kindly be dismissed.
B. Petitioner has not approached this Hon'ble Court with clean hands.
The impugned FIR is of the year 2009. Charge sheet is filed in February 2010. The trial has begun long back. Evidence is led by parties. The process of examining the witnesses has started. Therefore, it is clear that after almost 4 years of filing of the FIR, the petitioner has filed the present petition for quashing of the impugned FIR.
C. Both the FIRs cannot be clubbed together Looking to gravity and different kind of charges and other factors, there is possibility of serious/capital punishment. There are also chances of conviction for the charges under the PC Act over and above the charges under IPC. If both the FIRs are clubbed, serious prejudice is likely to be caused to the complainant.
As per the provisions of Criminal Procedure Code, offences of same kind can be charged together only when the offences have occurred within a year. In the present case, the offence of C.R. No.I101/2009 is committed during the period between 29.06.2007 and 23.10.2008, whereas the offence of C.R. No.I 131/2009 is committed during the period between 2003 to 2009. Thus, both the offences cannot be charged together.
As per the settled position of law, rival version in respect of same incident do take different shapes and in that event, lodgment of two FIRs is permissible. Counter FIR in respect of same or connected incident is permissible. Merely because the complainant lodged FIR against certain persons alleging fabrication of document and forgery, that would not debar other aggrieved persons from Page 13 of 45 HC-NIC Page 15 of 47 Created On Sat Jul 01 00:24:43 IST 2017 15 of 47 R/CR.MA/6370/2013 CAV JUDGMENT subsequently seeking Magistrate's direction under Sec. 156(#) for registration of FIR against some others including complainant relating to counter allegations. Subsequent counter FIR registered pursuant to Magistrate's direction u/s.156(3) Hence, not liable to be quashed.
It is also settled position of law that even where the police registering two FIRs and filing two final reports, is too technical a ground to quash charge."
13. In support of her submissions, Ms. Acharya has placed reliance on the following decisions: "(i) (2013) 5 SCC 148 Surender Kaushik & Ors. v. State of UP & Ors.
(ii) AIR 2002 sc 441 (1) Kari Chaudhary Vs. Most. Sita Devi & Ors.
(iii) AIR 2006 SC 915 Rameshchandra Nandlal Parikh v. State of Gujarat & Anor.
(iv) AIR 2003 SC 3838 Lalu Prasad@Lalu Prasad Yadav v. State through CBI
(v) 2004 Cri.L.J. 1322 Ravinder Pal Singh v. State of Punjab
(vi) AIR 2009 SC 984 (Head NoteE) Nirmal Singh Kahlon v. State of Punjab & Ors.
(vii) AIR 1985 SC 404 Harjinder Singh V. State of Punjab & Ors.
(viii) 1999 (3) SCC 247 Ha. Krishna v. State of Karnataka Page 14 of 45 HC-NIC Page 16 of 47 Created On Sat Jul 01 00:24:43 IST 2017 16 of 47 R/CR.MA/6370/2013 CAV JUDGMENT
14. Mr. Mitesh Amin, the learned APP appearing for the State also opposed this application and submitted that the applicant is not entitled to the grant of the relief as prayed for. The trial in both the cases has commenced. The Court has started examining witnesses in both the cases. The application on hand is of the year 2013. This Court at no point of time granted any relief. In such circumstances, Mr. Amin, the learned PP prays that there being no merit in this application, the same be rejected.
15. 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 applicant is entitled to the relief as prayed for in this application.
16. The Supreme Court in the case of Amitbhai Anilchandra Shah (supra) has considered at length the law on the subject by making a reference of its earlier decisions on the subject which includes T.T.Antony (supra) as well as Babubhai (supra).
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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 subsection (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 Page 16 of 45 HC-NIC Page 18 of 47 Created On Sat Jul 01 00:24:43 IST 2017 18 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 subsection (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a countercase, 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 Page 17 of 45 HC-NIC Page 19 of 47 Created On Sat Jul 01 00:24:43 IST 2017 19 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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, reaffirmed 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. 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 Page 18 of 45 HC-NIC Page 20 of 47 Created On Sat Jul 01 00:24:43 IST 2017 20 of 47 R/CR.MA/6370/2013 CAV JUDGMENT (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
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 1936 Page 19 of 45 HC-NIC Page 21 of 47 Created On Sat Jul 01 00:24:43 IST 2017 21 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 120B 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 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 Page 20 of 45 HC-NIC Page 22 of 47 Created On Sat Jul 01 00:24:43 IST 2017 22 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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.
17. 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 :
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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 subjectmatter 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 subjectmatter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subjectmatter 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 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.Page 22 of 45
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15. It is worth noting that in the said case, the twoJudge 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 µ the first and the second µ 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 threeJudge 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 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 Page 23 of 45 HC-NIC Page 25 of 47 Created On Sat Jul 01 00:24:43 IST 2017 25 of 47 R/CR.MA/6370/2013 CAV JUDGMENT report. On the basis of the said direction, Crime No. 48A 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.
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 countercase 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 Page 24 of 45 HC-NIC Page 26 of 47 Created On Sat Jul 01 00:24:43 IST 2017 26 of 47 R/CR.MA/6370/2013 CAV JUDGMENT under Section 482 of the Code or under Articles 226/227 of the Constitution.
Thereafter, the threeJudge 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 not apply to countercomplaint 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 countercomplaint 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 Page 25 of 45 HC-NIC Page 27 of 47 Created On Sat Jul 01 00:24:43 IST 2017
27 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 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 PW5 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 Page 26 of 45 HC-NIC Page 28 of 47 Created On Sat Jul 01 00:24:43 IST 2017 28 of 47 R/CR.MA/6370/2013 CAV JUDGMENT in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is 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 threeJudge 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 direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the Page 27 of 45 HC-NIC Page 29 of 47 Created On Sat Jul 01 00:24:43 IST 2017 29 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 wellnigh 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 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.
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18. I may also quote with profit one another 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 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 Page 29 of 45 HC-NIC Page 31 of 47 Created On Sat Jul 01 00:24:43 IST 2017 31 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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.
19. 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 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 Page 30 of 45 HC-NIC Page 32 of 47 Created On Sat Jul 01 00:24:43 IST 2017 32 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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.
20. 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.
21. 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 Page 31 of 45 HC-NIC Page 33 of 47 Created On Sat Jul 01 00:24:43 IST 2017 33 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 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).
22. 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 Page 32 of 45 HC-NIC Page 34 of 47 Created On Sat Jul 01 00:24:43 IST 2017 34 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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).
23. Having regard to the facts noted above, I find it extremely difficult at this point of time to take the view that there is commonality in the two FIRs and they emerged from the same set of circumstances. I find it Page 33 of 45 HC-NIC Page 35 of 47 Created On Sat Jul 01 00:24:43 IST 2017 35 of 47 R/CR.MA/6370/2013 CAV JUDGMENT difficult to take the view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not have been permitted to be registered or there could be a common trial.
24. 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 chargesheet which was filed in pursuance of the second FIR was ordered to be treated as supplementary chargesheet in the first FIR.
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25. I find it extremely difficult to accept the vociferous submission canvassed on behalf of the applicant that since the modus operandi remained the same for the purpose of cheating there could not have been more than one FIR. I do not find any element of sameness'. In my view each of the transactions are distinct, thereby constituting distinct offences.
26. So far as the decision of the Supreme Court in the case of S. Swaminathan (supra) is concerned the same in my view has no application to the facts of the case. The Supreme Court in the said case having regard to the evidence on record reached to the conclusion that there was a single conspiracy to cheat the members of the public and as the incidents of cheating were in pursuance of one conspiracy and acts formed part of the same transaction. The argument of misjoinder of charges was rejected. I find it difficult in the facts of the case to take the view that the offence of both the FIRs were part of one single conspiracy.
27. The law on the subject emerges to the Page 35 of 45 HC-NIC Page 37 of 47 Created On Sat Jul 01 00:24:43 IST 2017 37 of 47 R/CR.MA/6370/2013 CAV JUDGMENT effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer InCharge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
28. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the Page 36 of 45 HC-NIC Page 38 of 47 Created On Sat Jul 01 00:24:43 IST 2017 38 of 47 R/CR.MA/6370/2013 CAV JUDGMENT same occurrence or are in 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 the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, the investigation on both the FIRs has to be conducted. (see Babubhai).
29. A lot was argued on behalf of the applicant as regard Section 300 of the Cr.P.C.
30. Subsection (1) of Section 300 of Cr.P.C. envisages as under: "A person who has once been tried by a Court of competent jurisdiction for an offence and convcited or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the once made against him might have been made under Sub Section (1) of Section 221, or for which he might have been convicted under Sub Page 37 of 45 HC-NIC Page 39 of 47 Created On Sat Jul 01 00:24:43 IST 2017 39 of 47 R/CR.MA/6370/2013 CAV JUDGMENT Section (2) thereof."
31. This Section enacts the rule of autrefois acquit and autrefois convict applicable to the criminal trials. The rule is that so long as the order of acquittal or conviction at a trial held by a Court of competent jurisdiction or a person charged committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried of any other offence arising therefrom. The basic principle is embodied in the maxim nemo debet bis puniri pro uno delicto that it is to say, that no one ought to be punished twice for the offence or for the same cause. Sub Section (1) of Section 300 of Cr.P.C. lays down the rule whereas subsections (2) to (5) are the exceptions thereto. Subsection (2) of section 300 of Cr.P.C. read thus: "(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been against him at the former trial under subsection (1) of Section 220.
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32. The true test by which the question whether such a plea is a sufficient bar in any particular case is whether the evidence necessary to support the second indictment would have been sufficient to procure illegal conviction upon the first. A trial is said to be upon the same facts if the evidence in the first case would have supported a conviction for the offences charged in the second case. It is a settled proposition of law that generally no accused shall be vexed with more than one trial for the offences arising out of the same set of facts.
33. Although the different offences arising out of the different acts may form the subject matter of separate charges in one trial yet that does not mean that the facts or acts are identical. The combined effect of Sections 300 (1) and 220 (1) of the Cr.P.C. is to lay down that generally no accused shall be vexed with more than one trial for the offences arising out of the same set of facts. Subsection (2) of Section 300 of Cr.P.C. would enable the Court to hold a second trial in the case of, distinct offence. If the ingredients of the two offences are not the same, though the same Page 39 of 45 HC-NIC Page 41 of 47 Created On Sat Jul 01 00:24:43 IST 2017 41 of 47 R/CR.MA/6370/2013 CAV JUDGMENT facts might have been relied upon in both the cases, thee would be no question of the principle of autrefois acquit and autrefois convict being applicable.
34. In the case of State v. R.V. Thimma Nagpudra, reported in AIR 1961 Mysore 69 :
(1961(1) Cri LJ 398), it was held that: "Where the accused was chargesheeted in consequence of the seizure of various articles from his houses, though different articles were involved in different cases, the Magistrate gave accused the benefit of doubt in regard to the identity of the articles alleged to have been stolen and acquitted the accused in one of those cases it was held that it would not bar the trial in other case."
35. In the case of Anju Chaudhary (supra) the Supreme Court in para 43, 44 and 45 observed as under: "43. It is true that law recognizes 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 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [(2001) 4 SCC 350], held that the expression 'same transaction' from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction.
44. It is not possible to enunciate any formula of Page 40 of 45 HC-NIC Page 42 of 47 Created On Sat Jul 01 00:24:43 IST 2017 42 of 47 R/CR.MA/6370/2013 CAV JUDGMENT 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 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.
45. 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"."
36. In the case of Madapuram Maddileti Naidu v. State of A.P. a learned Single Judge of the Andhra Pradesh High Court had an occasion to consider almost an identical issue. I may quote the observations of the learned Single Judge: "10. It has to be seen that Sessions Case was registered as SC.No. 537 of 2009 on the file of Assistant Sessions Judge, Adoni in the year 2009. Similarly SC.No. 63 of 2009 was registered on the file of IIAdditional Sessions Judge, Kurnool at Adoni in the year 2009, therefore, it is clear that petitioners herein, know very well about the pendency of these cases since 2009. Admittedly no petition or memo was filed before courts at Adoni i.e., either before II Additional Sessions Judge, Page 41 of 45 HC-NIC Page 43 of 47 Created On Sat Jul 01 00:24:43 IST 2017 43 of 47 R/CR.MA/6370/2013 CAV JUDGMENT Kurnool at Adoni or before Assistant Sessions Judge, Adoni to club both the cases together for conducting joint trial. It appears that accused never felt it necessary for conducting joint trial.
11. It is clear from proviso to section 219 [2] Cr.P.C. that application from the accused is necessary.
Proviso to Section 219 Cr.P.C. is as follows: 219 [2] Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code [45 of 1860] or of any special or local law:
Provided that, for the purpose of this section, an offence punishable under section 379 of the Indian Penal Code [45 of 1860] shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
12. Thus, it is clear that the accused should specifically plead that if separate trial is conducted it may prejudicially affect their interest. Admittedly, no such applications have been filed before lower courts. Therefore, it has to be seen whether the petitioners, at this stage can seek joint trial ? The cause of action, according to the petitioners arose when the learned Sessions Judge, Kurnool passed orders on 28/10/2014. As seen from the correspondence between IIAdditional Sessions Judge, Kurnool at Adoni and the learned Sessions Judge, Kurnool, it is clear that the learned Sessions Judge has permitted the IIAdditional Sessions Judge to take appropriate decision and proceed with the case in accordance with law. This means the earlier order issued by the Sessions Judge, Kurnool stands withdrawn. The docket orders dated 5/11/2014 to 17/11/2014 are not available.
13. It is not necessary to decide whether the Police Officer who registered Cr.No. 59 of 2008 was justified in registering separate case or not.
14. As and when it appears that any case is to be tried with another case on the ground that evidence may be tried together overlapping in both the cases, it is for the concerned police officers or to the accused to take steps at the initial stage. Now in this case charges have been framed, trial commenced and no steps were taken to club both the Page 42 of 45 HC-NIC Page 44 of 47 Created On Sat Jul 01 00:24:43 IST 2017 44 of 47 R/CR.MA/6370/2013 CAV JUDGMENT cases together at the initial stage or atleast before commencement of trial. Now much water has flown. At this stage, it is not possible to club both cases together. Moreover, in view of the submissions of Sri Posani Venkateswarlu, learned Public Prosecutor submitted that learned Public Prosecutor conducting the case in SC.No. 537 of 2009 has opined that SC.No. 537 of 2009 may be withdrawn in view of conclusion of trial in SC.No. 63 of 2009. Of course the withdrawal of case has to be done with the permission of the court. No useful purpose will be served by passing any orders in these revision petitions at this stage. The Police Officers conducting investigation should conduct proper investigation and take proper steps. Even other wise when charges have to be framed or when arguments are being heard on charges, the concerned Public Prosecutor or the defence counsel or the learned Sessions Judges hearing the case should take appropriate steps at the initial stage to see that cases are clubbed or joint trials are conducted in similar circumstances. "
37. In the overall view of the matter I have reached to the conclusion that the applicant is not entitled to the relief as prayed for at this point of time. The charge in the case of C.R. No.101 of 2009 was framed on 24th February, 2012 and the charge in the case of C.R. No.I131 of 2009 was framed on 9th December, 2011. As noted above, the trial in both the cases has commenced. Many witnesses have been examined so far. Any indulgence at this point of time may result in further confusion and other irregularities.
38. In the result, this application fails and is hereby rejected.Page 43 of 45
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45 of 47 R/CR.MA/6370/2013 CAV JUDGMENT (J.B.PARDIWALA, J.) Manoj At this stage, Mr. Khandheria, the learned counsel appearing for the applicant makes a request to stay the operation of this judgment and order for a period of eight weeks. According to him, this Court had made it clear that if an application for adjournment is filed, the Trial Court shall consider the same accordingly. As such, there is no interim order passed by this Court. In such circumstances, the request of Mr. Khandheria is not accepted. The Trial Court shall now proceed further with both the cases.
Page 44 of 45HC-NIC Page 46 of 47 Created On Sat Jul 01 00:24:43 IST 2017 46 of 47 R/CR.MA/6370/2013 CAV JUDGMENT (J.B.PARDIWALA, J.) Manoj Page 45 of 45 HC-NIC Page 47 of 47 Created On Sat Jul 01 00:24:43 IST 2017 47 of 47