Gujarat High Court
Amit Rajkumar Nihalani & vs State Of Gujarat & on 4 April, 2017
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/17820/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17820 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AMIT RAJKUMAR NIHALANI & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1 - 2
MR NJ SHAH, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 04/04/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code' for short) for quashing and setting aside the FIR being C.R.No.I-212 of 2011 registered at Gandhidham `A' Division Police Station for the offences punishable under Sections 406, 420, 467, 468 and 471 of Indian Penal Code.
2. It is the case of the applicant that the impugned FIR is filed by the present respondent no.2 against the applicants in which it has been alleged that on 26.1.2001, there was devastating earthquake in Kutch district and number of buildings had collapsed. The government, had, therefore, issued package for compensation to the owners of the buildings which collapsed during the said earthquake. It is alleged that the applicants-accused had submitted an application for Flat Nos.401 and 402 of Square Apartments situated at Plot No.313, Ward 12-B of Adipur for financial assistance. It is further alleged that the accused had submitted photocopy of the light bill, certificate of Hariom Builders issued on 2.4.2001 as well as the affidavit dated 20.6.2001. On the basis of the application and supporting documents submitted by the accused, the Additional Collector, Gandhidham by an order dated 25.6.2001 sanctioned the financial Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT assistance to the tune of Rs.1.75 lacs each and first installment of Rs.70,000/- was granted. As per the resolution dated 30.8.2001 issued by the Revenue Department, 90% of financial assistance was to be provided from mobilization funds and therefore the amount of Rs.87,500/- came to be sanctioned by Additional Collector, Gandhidham on 28.12.2001. Thus, the amount of Rs.1,57,500/- was paid by cheques to the applicants-accused. The accused had submitted the indemnity bond and also stated on oath about their occupying the flat from June, 1998. It was also stated that the applicants nor their family members were builders and promoters of the said apartment. It was also mentioned in the said indemnity bond and affidavit that the applicants are not possessing any other house in their name or in the name of their family members except the aforesaid flat.
3. It is further alleged that one Shankar Hargovind Advani of Adipur had submitted written application on 21.2.2003 wherein it was alleged that the applicants-accused had obtained financial assistance on the basis of false evidence and in fact they are actually sons of the builder. On the basis of the said application received by the aforesaid person, the Additional Collector issued notice to the applicants- accused, however, they did not remain present on Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT the date of hearing and therefore the Additional Collector passed an order on 2.3.2003 and cancelled the order of granting financial assistance. It is further alleged that though notices were issued to the applicants-accused for deposit of the aforesaid amount, such amount was not deposited and therefore the impugned FIR came to be filed on 24.11.2011.
4. Heard learned advocate Mr.A.D.Shah appearing for the applicants and learned APP Mr.N.J.Shah for the respondents.
4.1. Learned advocate Mr.A.D.Shah mainly contended that before registration of the impugned FIR, one Shankar Hargovind Advani filed a private complaint being Inquiry Case No.42 of 2011 before learned J.M.F.C., Gandhidham. Learned advocate has referred to the allegations made in the said complaint against the present applicants and submitted that learned Magistrate initially stayed the said complaint under Section 210 of the Code on the ground that before filing a private complaint by said Mr.Advani, he had already submitted a written complaint in the concerned police station and therefore learned Magistrate called for the report from the concerned police authorities with regard to the written complaint given by Mr.Advani. However, Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT the concerned Police Inspector has submitted a report with an opinion to file the said written complaint to the concerned Dy.S.P. After considering the said report, the learned Magistrate passed an order of investigation under Section 202 of the Code by the P.I. `A' Division Police Station, Gandhidham.
4.2. Learned advocate Mr.A.D.Shah thereafter submitted that in pursuance to the order passed by the learned J.M.F.C., the concerned Police Inspector `A' Division Police Station, Gandhidham submitted his report on 9.9.2011 to the learned J.M.F.C., wherein the concerned Police Officer has stated that the accused have stated that two Civil Suits bearing nos.26 and 27 of 2003 are pending in Civil Court, Gandhidham with regard to the subject matter and therefore they have not returned the amount to the concerned authority. Learned advocate has further referred to the said report and submitted that as per the say of the concerned officer, when the amount is not deposited by the applicants-accused, they have committed the offences. At this stage, it is submitted that the criminal proceedings are still pending before the concerned Magistrate.
4.3. Learned advocate Mr.A.D.Shah for the applicants thereafter submitted that the impugned Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT FIR is filed for the same subject matter and for the same incident by respondent no.2-Mamlatdar on 24.11.2011. Learned advocate has referred to the allegations made in the impugned FIR and submitted that the allegations made in the private complaint filed by Mr.Advani and the impugned FIR filed by the respondent no.2 are same and therefore the impugned FIR is nothing but a gross abuse of the process of the Court and therefore the same be quashed and set side. It is submitted that when the private complainant has failed to obtain the order under Section 156(3) of the Code, the impugned FIR was filed through Mamlatdar for the same incident. Thus, the respondent no.2 has misused the process of the Court and therefore the impugned FIR be quashed and set aside.
4.4. Learned advocate Mr.A.D.Shah further contended that the applicant-Manish Suresh Nihalani has filed Regular Civil Suit No.27 of 2003 in the Court of Civil Judge (S.D.) at Gandhidham on 19.11.2003 in pursuance to the order dated 2.3.2003 as well as the final notice dated 8.10.2003 issued by the Additional Collector. The said suit was filed for declaration and permanent injunction and the said suit is still pending. Similar suit is filed by applicant Amit Rajkumar Nihalani being Regular Page 6 of 16 HC-NIC Page 6 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT Civil Suit No.26 of 2003 pending before the same Court. It is pointed out that Mr.Advani submitted an application to join him as party defendants in the said suits. However, his application came to be rejected by learned Senior Civil Judge, Gandhidham vide order dated 20.7.2011. In the meantime, the said complainant filed a private complaint.
4.5 Learned advocate Mr.A.D.Shah lastly submitted that though the civil suit is pending against the order passed by the Additional Collector in the year 2003, immediately after registration of the impugned FIR, the applicants have deposited the entire amount with the concerned authority. Learned advocate has referred the documents produced along with this application in support of the said contention. It is, therefore, submitted that the respondent no.2 has not suffered any loss and therefore also the impugned FIR be quashed and set aside. Learned advocate Mr.A.D.Shah has placed reliance upon the following decisions:
1) Anvar Azimbhai Sheikh V/s State of Gujarat, reported in 2009(3) GCD 2002
2) Babubhai V/s State of Gujarat & Ors., reported in JT 2010 (9) SC 177.
3)Amitbhai Anilchandra Shah V/s Central Bureau of Page 7 of 16 HC-NIC Page 7 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT Investigation and Another, reported in (2013)6 SCC 348.
5. Learned APP Mr.N.J.Shah for the respondent-State has submitted that the prima facie the ingredients of alleged offences in the FIR are made out and therefore this Court may not quash the same outrightly. However, he is not in a position to dispute that the impugned FIR is very much similar to the private complaint filed by Mr.Advani which is pending before the learned Magistrate, Gandhidham.
6. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that as per the allegation levelled in the impugned FIR, the applicants have obtained financial assistance by submitting wrong facts and when it was noticed by the Additional Collector, the Additional Collector passed an order directing the applicants to deposit the amount obtained by the applicant by way of financial assistance. It is relevant to note that the aforesaid direction given by the Additional Collector is under challenge in Regular Civil Suit Nos.26 of 2003 and 27 of 2003. The said civil suits are pending since November, 2003. After a period of more than eight years, private Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT complaint came to be filed by one Mr.Advani being Inquiry Case No.42 of 2011. In the said complaint, learned Magistrate has initially passed an order on 2.4.2011 whereby the said complaint was stayed under Section 210 of the Code on the ground that the written complaint was also made by the said complainant to the concerned police authorities. Learned Magistrate, therefore, called for the report of the said written complaint given by the said complainant to the concerned police authorities. When the report was submitted on 15.4.2011, it was revealed that the concerned Police Inspector has submitted his opinion that the complaint filed by the said complainant Mr.Advani is required to be filed. Such report was sent to Dy.S.P. The learned Magistrate thereafter, considering the documentary evidence produced on record, directed the investigation under Section 202 of the Code by the Police Inspector of `A' Division Police Station, Gandhidham. The Police Inspector, after investigation, submitted his report on 9.9.2011 wherein there is specific reference to the pendency of the civil suits filed by the applicants-accused. However, it was mentioned that the applicants have not deposited the amount with the government and therefore they have committed the alleged offences in the said private complaint. Thus, the learned Magistrate Page 9 of 16 HC-NIC Page 9 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT has taken the cognizance of the private complaint filed by Mr.Advani and the proceedings of the said complaint and the trial of the aforesaid case is pending before the learned Magistrate.
7. In the meantime, the impugned FIR is filed on 24.11.2011 by respondent no.2 for the same incident and same occurrence. Learned APP Mr.N.J.Shah is not in a position to dispute the fact that the allegations made in the impugned FIR are the same which are levelled against the present applicant in the private complaint which is pending before the learned Magistrate for trial where cognizance is taken of the complaint.
8. Thus, from the record, it can be said that for the same incident and occurrence, the second FIR is filed which is nothing but gross abuse of the process of the Court.
9. Learned advocate Mr.A.D.Shah has placed reliance upon the decision rendered by this Court in the case of Anvar Azimbhai Sheikh (supra), wherein this Court has observed in paragraph 10,11 and 12 as under:
"10.On the second aspect, for quashing of the criminal complaint subsequently filed by the original complainant with the police vide C.R. No.62/04 is concerned, it is by now well settled that the second complaint for the Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT same subject matter would not be maintainable before the Court for taking cognizance thereof in normal circumstances. Reference may be made to the decision of the Apex Court in case of T.T.Antony Vs. State of Kerala reported at AIR 2001 SC 2637, and more particularly, the observations made at paras 18 & 19 of the said decision, which reads as under:
"18. An information given under sub- section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (FIR) though this term is not used in the Code. It is very important document. And as its nickname 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 Sections 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 not infrequently that more information 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 cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer- in-charge of police station is the First Information Report - F.I.R. postulated by Section 154 of Cr. P. C. All other information made orally or in writing after the commencement of the investigation into the cognizable Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT 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 FIR 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. Take a case where an FIR mentions cognizable offence under Sections 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr. P. C. as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused.
19. The scheme of the Cr.P.C. is that an officer-in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Page 12 of 16 HC-NIC Page 12 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT Cr.P.C. 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 evidence collected he has to form opinion under Sections 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 Cr.P.C."
11.If the facts of the present case are examined in light of the above legal position as recorded hereinabove, it is an admitted position that the subsequent complaint with the police is for the same subject matter, on the same accusation. When the learned Magistrate has already ordered inquiry under Section 202 in respect to the first complaint, and the said inquiry is also to be made by the police and the report is to be submitted before the learned Magistrate apart from the fact that the second complaint may not be maintained, if the second complaint with the police vide C.R.No.62/04 is allowed to continue, it would result into further complication and the investigation by the police may be premature prior to the competent Court considers the matter for the alleged offence.
12.Under these circumstances, it would be just and proper to quash the complaint vide Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT CR. No.62/04 filed with the J.P.Road Police Station, Vadodara, Annexure-C of Cr.Misc. Application No.1496/06 and the very complaint is also the subject matter of challenge in Cr.Misc. Application No.1652/04."
10. In the case of Babubhai (supra), the Hon'ble Supreme Court has, after referring to the various earlier decisions rendered by the Hon'ble Supreme Court, observed and held in paragraphs 17 and 17.1 as under:
"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 that 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.
17.1 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 Page 14 of 16 HC-NIC Page 14 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT 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."
11. Keeping in mind the aforesaid decisions rendered by this Court as well as the Hon'ble Supreme Court, if the facts of the present case are examined, it is an admitted position that the subsequent FIR is filed by the present respondent no.2 for the same subject matter on the same accusations when the complaint filed by Mr.Advani is pending before the learned J.M.F.C., Gandhidham. Learned J.M.F.C., has already ordered investigation under Section 202 of the Code in respect of the first complaint wherein the concerned police officer has submitted his report after making necessary inquiry. Trial of the said case is pending. Thus, if the impugned FIR is allowed to continue, it would be considered as the gross abuse of the process of the Court which is not permissible. Hence, this Court is of the opinion that when complainant Mr.Advani failed to get the order of investigation under Section Page 15 of 16 HC-NIC Page 15 of 16 Created On Tue Aug 15 17:36:53 IST 2017 R/CR.MA/17820/2011 JUDGMENT 156(3) of the Code, impugned FIR through Mamlatdar is filed for same incident. Moreover, amount in dispute is already deposited by accused before concerned authority. Thus, in the facts of the case, powers under Section 482 of the Code are required to be exercised in the interest of justice.
12. In view of the aforesaid discussion, this application is allowed. The impugned FIR being C.R.No.I-212 of 2011 registered at Gandhidham `A' Division Police Station for the offences punishable under Sections 406, 420, 467, 468 and 471 of Indian Penal Code is quashed and set aside. Rule is made absolute.
(VIPUL M. PANCHOLI, J.) Srilatha Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 15 17:36:53 IST 2017