Bombay High Court
Vishal S/O. Uttam Rathod vs The State Of Maharashtra on 26 September, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
6-ABA-1180-2019
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
6 ANTICIPATORY BAIL APPLICATION NO.1180 OF 2019
VISHAL S/O. UTTAM RATHOD
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Santosh Chapalgaonkar h/f Mr.
Raje Vikrant P. and Anita Rohidas Pawar
APP for Respondent - State: Mr. K.D. Munde
...
CORAM : V. K. JADHAV, J.
DATED : 26th September, 2019 PER COURT:-
1. The applicant is seeking anticipatory bail in connection with Crime No.412 of 2019 registered with CIDCO Police Station, District Aurangabad for the offences punishable under Sections 197, 198, 203, 406, 419, 420, 467, 468, 471, 120(B), 504, 506 r/w 34 of IPC. His application with similar prayer bearing Criminal Bail Application No.1632 of 2019 came to be rejected by the Additional Sessions Judge, Aurangabad vide order dated 16.08.2019.
2. Heard both the sides.
3. In a case of Babubhai Vs. State of Gujarat and Others reported in (2010) 12 SCC 254, the Supreme Court ::: Uploaded on - 27/09/2019 ::: Downloaded on - 28/09/2019 02:29:13 ::: 6-ABA-1180-2019 -2- in Paragraph No.13 referring the case in T.T. Antony Vs. State of Kerala and Others, has made the following observations:
"13. In T.T. Antony Vs. State of Kerala & Ors., this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report 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 the Investigating Officer has to file one or more reports under Section 173 Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the ::: Uploaded on - 27/09/2019 ::: Downloaded on - 28/09/2019 02:29:13 ::: 6-ABA-1180-2019 -3- same is not in conformity with the scheme of the Cr.P.C. The Court further observed as under:
"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....... However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
4. In the instant case, prima facie it appears that for the same cognizable offence and same occurrence two FIRs had been lodged. So far as first Crime No.27 of 2016 ::: Uploaded on - 27/09/2019 ::: Downloaded on - 28/09/2019 02:29:13 ::: 6-ABA-1180-2019 -4- registered with Mandvi Police Station, Taluke Kinwat, District Nanded, the investigation is over and charge-sheet has been submitted before the Court against two co-accused persons, who are also implicated as an accused persons in connection with the present crime. Even though, reference has been given in the charge-sheet about the name of the present applicant along with investigation carried out in respect of the same date and examination with same allegations, the applicant has not been implicated as an accused in the said crime.
5. Learned APP is requested to take specific instructions in this regard and if needed the Investigating Officer to take advise/opinion from the Superior.
6. Meanwhile, the applicant needs to be protected by interim bail until further orders. In the event of arrest of the applicant viz. VISHAL S/O. UTTAM RATHOD, in connection with Crime No.412 of 2019 registered with CIDCO Police Station, District Aurangabad for the offences punishable under Sections 197, 198, 203, 406, 419, 420, 467, 468, 471, 120(B), 504, 506 r/w 34 of IPC, he be released on bail on furnishing P.B. of Rs.15,000/- with one surety of the like amount on the condition that the applicant shall not tamper with the prosecution evidence in any manner.
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7. Stand over to 09.10.2019.
(V. K. JADHAV, J.) Sam..
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