Rajasthan High Court - Jaipur
Krishan Kumar Goyal vs State Of Rajasthan on 17 July, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH,JAIPUR. ::: S.B. CRIMINAL MISC. PETITION No.987/2013 Krishan Kumar Goyal v/s State of Rajasthan DATE OF ORDER ::: July 17, 2015 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Shri Anil Upman, for petitioner. Shri Jitendra Srimali, Public Prosecutor.
The accused petitioner has filed this criminal miscellaneous petition u/s 482 Cr.P.C. with a prayer to quash FIR No.15/2012 registered at Excise Police Station Bayana, District Bharatpur for offences under sections 21, 54, 57 and 58-C of the Rajasthan Excise Act.
Brief relevant facts for the disposal of this petition are that FIR No.666/2012 came to be registered at Police Station Udhyog Nagar, Alwar on 2.12.2012 for the offence u/s 407 IPC at the instance of one Shri Anil Kumar, Manager of East India Agency MIA Alwar on the premise that 500 cartons of Indian made foreign liquor entrusted to a carrier registration No.RJ-05-GA-786 were dishonestly misappropriated and they did not reach the destination for which they were sent through the aforesaid vehicle. During the course of investigation of the aforesaid FIR, Investigating Officer ASI Shri Brijesh Kumar Meena raided the licensed liquor shop of the petitioner and recovered 7 cartons of the aforesaid liquor on 11.12.2012 and on that basis present FIR was registered against the petitioner on 13.12.2012 for the aforesaid offences. It is an admitted fact that after investigation charge-sheet has already been filed against the petitioner and cognizance has also been taken against him. During the course of investigation of the present FIR, it was found that the petitioner obtained the recovered cartons of the aforesaid liquor and kept them for sell in his retail shop in violation of conditions of the licence issued to him.
It was submitted by the learned counsel for the petitioner that it is well settled legal position that for the same incident or for more than one incident committed in the same course of transaction, second or subsequent FIR cannot be registered and investigating agency is entitled to investigate all the offences committed in the same course of transaction. It was further submitted that as per prosecution case, during the course of investigation of FIR No.666/2012 registered at Police Station Udhyog Nagar, Investigating Officer of the said FIR raided the licenced liquor shop of the petitioner and allegedly recovered 7 cartons of the said liquor and thus it is clear that the offence, if any, committed by the petitioner by keeping the recovered liquor in violation of the conditions of the licence issued to him, even then it is clear that the present offence was committed by him in continuation of the prior offence or in the course of the same transaction and in view of the same, the present FIR could not have separately been registered and investigated and all subsequent proceedings including the submissions of charge-sheet and order of cognizance being illegal and without legal authority are liable to be quashed and set aside. It was further submitted that it is also well settled that if for the same offence or for any subsequent offence committed during the course of the same transaction, second or subsequent FIR is registered, the same is liable to be quashed and set aside u/s 482 Cr.P.C. In support of his submissions, learned counsel for the petitioner relied upon the case of T.T. Antony v/s State of Kerala and Others reported in (2001) 6 SCC 181.
On the other hand, it was submitted by the learned Public Prosecutor that from the allegation made in the present FIR and material made available on record, it cannot be said that the present offence has been committed by the petitioner in continuation of the prior offence u/s 407 IPC or it was committed during the course of the same transaction and therefore, the present FIR cannot be said to be second FIR for the same incident. It was further submitted that prior FIR No.666/2012 was registered at Police Station Udhyog Nagar, Alwar on 2.12.2012 by the reason that the liquor entrusted to the carrier was misappropriated and did not reach the destination for which it was sent, whereas the present FIR has been registered on the ground that petitioner kept in his possession the recovered liquor in violation of the conditions of the licence issued in his favour although the recovered liquor is a part of the misappropriated liquor.
I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law.
Hon'ble Supreme Court in the case of T.T. Antony (supra), has held that 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 same occurrence or incident giving rise to one or more cognizable offences.
Thus, it is clear that second FIR is barred only in respect of the same cognizable offence or same occurrence or incident giving rise to one or more cognizable offences but if the subsequent occurrence giving rise to an offence is a separate and independent occurrence, second or subsequent FIR cannot be said to be barred.
Hon'ble Supreme Court in the case of Anju Chaudhary v/s State of Uttar Pradesh & Anr. reported in (2013) 6 SCC 384, has held that second FIR in respect of the same offence or incident forming part of the same transaction as contained in first FIR is not permissible but second FIR for an unrelated incident and for offence of such magnitude which does not fall within ambit of first FIR, is permissible.
In the facts and circumstances of the present case, it is to be seen whether the present FIR can be treated to be a second FIR for the same incident.
As already stated, the prior FIR No.666/2012 came to be registered at Police Station Udhyog Nagar, Alwar on 2.12.2012 on the premise that the liquor entrusted to the carrier was found to be misappropriated as it did not reach the destination for which it was sent.
In my opinion, offence u/s 407 IPC was complete as soon as the liquor so entrusted to the carrier was misappropriated.
On the other hand, the present FIR was registered on the ground that some part of the aforesaid misappropriated liquor was found in lincenced retail liquor shop of the petitioner for sale in violation of the conditions of the licence issued in his favour. The two incidents are independent to each other and it cannot be said that the second offence allegedly committed by the petitioner was committed in the course of the same transaction or it was committed by him in continuation of the first offence. Merely because the liquor in question in the present FIR was recovered during the course of investigation of the prior FIR by the Investigating Officer, it cannot be said that the present offence is a part and parcel of the prior offence. No ground has been made on behalf of the petitioner to exercise inherent powers conferred upon this court u/s 482 Cr.P.C. so as to quash and set aside the present FIR.
Consequently, the criminal miscellaneous petition being meritless is, hereby, dismissed.
The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL),J.
CHAUHAN/ All corrections made in the judgment/ order have been incorporated in the judgment/order being emailed.
Chauhan Sr.P.A