Bombay High Court
Jayesh Hareshwar Joshi vs The State Of Maharashtra on 7 October, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
45 BAIL APPLICATION NO.1093 OF 2019
JAYESH HARESHWAR JOSHI
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. M.A. Kocharekar h/f Mr. P.D. Kale
Special Public Prosecutor : Mr. P.P. Chavan
...
CORAM : V. K. JADHAV, J.
DATED : 7th October, 2019
PER COURT:-
1. The applicant is seeking Bail in connection with
Crime No.88 of 2015 registered with New Mondha Police
Station, District Parbhani for the offences punishable under
Sections 409, 418, 420, 120(B), 467, 468, 471, 34 of IPC and
under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention
of Corruption Act. His application with similar prayer bearing
Special (ACB) Case No.04 of 2018 came to be rejected by the
Additional Sessions Judge-4, Parbhani District Parbhani vide
order dated 17.08.2019.
2. Heard both sides.
3. It appears that the applicant is on bail in connection
with the crime No. 336 of 2015 registered with Dahisar police
station, Mumbai wherein charge sheet has been submitted
before the court prior to the filing of the charge sheet in
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connection with the present crime. Learned counsel for the
applicant has pointed out to me that so far as the charge sheet
submitted in connection with crime No. 336 of 2015 by the
State CID, the present applicant is also an accused in
connection with the said crime and so far as his role in
connection with the said crime is concerned, the same
transaction is in between co-accused Ramesh Kadam, the
present applicant on one side and Amardeepsingh Sethi and
Ajitsingh Sethi on the other side in respect of plot No. 217/B
sector No.1, CIDCO, Aurangabad has been referred. On
perusal of the charge sheet submitted in connection with the
present crime, so far as the role of the applicant as shown in
the charge sheet is concerned, the said role is also limited to
the extent of said transaction. It is for the applicant to initiate
the proceeding for quashing of F.I.R. and obviously the State
would counter the said proceeding for quashing of F.I.R. as it
has been done by the learned Special Prosecutor while
opposing this application. However, it cannot be ignored that
the present applicant in connection with the crime No. 336 of
2015 came to be released on bail.
4. At this stage, I deem it appropriate to refer two
judgments of the Supreme Court, first in the case of
Babubhai vs. State of Gujarat and others, reported in
(2010) 12 SCC 254 and second in the case of T. T. Antony
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vs. State of Kerala and others, reported in AIR 2001 SC
2637.
5. In the case of Babubhai vs. State of Gujarat
and others (supra) in para 17 of the judgment, the Supreme
Court has made the following observations:-
"17. Thus, in view of the above, the law on the
subject emerges to the 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 In-Charge 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.
In such a case the court has to examine the facts
and circumstances giving rise to both the FIRs and
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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 regard
to the incidents which are two or more parts of the
same transaction. If the answer is 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,
investigation on both the FIRs has to be
conducted."
6. In the case of T. T. Anthony vs. State of Kerala,
(supra) the Supreme court in para 18 of the judgment has
made the following observations:-
"18. An information given under sub-section (1)
of Section 154 of Cr.P.C. is commonly known as
First Information Report (F.I.R.) though this term
is not used in the Code. It is a very important
document. And as its nick name suggests it is the
earliest and the first information of a cognizable
offence recorded by an officer in charge of a police
station. It sets the criminal law into motion and
marks the commencement of the investigation
which ends up with the formation of opinion under
Section 169 or 170 of Cr.P.C., as the case may be,
and forwarding of a police report under Section
173 of Cr.P.C. It is quite possible and it happens
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not infrequently that more informations than one
are given to a police officer in charge of a police
station in respect of the same incident involving
one or more than one cognizable offences. In such
a case he need not enter every one of them in the
station house diary and this is implied in Section
154 of Cr.P.C. Apart from a vague information by
a phone call or a cryptic telegram, the information
first entered in the station house diary, kept for
this purpose, by a police officer in charge of a
police station is the First Information Report -
F.I.R. postulated by Section 154 of Cr.P.C. All
other informations made orally or in writing after
the commencement of the investigation into the
cognizable offence disclosed from the facts
mentioned in the First Information Report and
entered in the station house diary by the police
officer or such other cognizable offences as may
come to his notice during the investigation, will be
statements falling under Section 162 of Cr.P.C. No
such information/statement can properly be
treated as an F.I.R. and entered in the station
house diary again, as it would in effect be a
second FIR and the same cannot be in conformity
with the scheme of the Cr.P.C."
7. I restrained myself from expressing any opinion as
to the similarity of the allegations made in both the crimes.
However, suffice it to say that one and the same transaction
has been referred as to the role allegedly played by the
applicant in connection with the present crime. Thus, on this
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ground alone, I am inclined to release the applicant on bail.
Hence, the following order:-
ORDER
I. Application is hereby allowed.
II. The applicant JAYESH HARESHWAR JOSHI, in connection with Crime No.88 of 2015 registered with New Mondha Police Station, District Parbhani for the offences punishable under Sections 409, 418, 420, 120(B), 467, 468, 471, 34 of IPC and under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, be released on bail on furnishing personal bond of Rs.25,000/- with one solvent surety of the like amount on following condition:-
a) The applicant shall not tamper with the prosecution evidence in any manner.
III. The application is disposed of accordingly.
(V. K. JADHAV, J.) Sam..
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