Gujarat High Court
Mohanbhai Haribhai vs State Of Gujarat on 8 September, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/7754/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7754 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 2511 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 8473 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 8512 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 2772 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 8696 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 3049 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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MOHANBHAI HARIBHAI
Versus
STATE OF GUJARAT
================================================================
Appearance:
IN CR.MA No.7754/2020, 8473/2020, 8512/2020 and 8696/2020:
MR YATIN OZA WITH MR BHAVESH B SARODE(6454), MS SRUSHTI A
THULA AND MS ASHLESHA M PATEL for the Applicant(s)
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R/CR.MA/7754/2020 CAV JUDGMENT
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
IN SCR.A. No.2511/2020:
MR M.R. MOLAVI for the Applicant
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent
IN SCR.A No.2772/2020:
MR JAL S. UNWALA WITH MS TEJAL VASHI for the Applicants
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent
IN SCR.A No.3049/2020:
MR JAYDEEP H SINDHI for the Applicant
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/09/2020
CAV JUDGMENT
1. RULE. Service of notice of rule was waived on behalf of the respective respondents. With the consent of learned advocates on both the sides, all the matters were heard together and are disposed of by this common judgment.
2. These petitions have been preferred under section 482 of the Code of Criminal Procedure (hereinafter referred to as "the CrPC") seeking quashment of (i) the FIR No.11206020201756 of 2020 registered with Kadi Police Station on 24.05.2020 for offences punishable under sections 409, 431, 201, 120B and 34 of IPC and sections 65(e), 81, 83 and 116-B of the Gujarat Prohibition Act and (ii) the subsequent FIR No.1120602020769 of 2020 registered with the same police station on 31.05.2020 for offences punishable under sections 409, 420, 120B and 34 of IPC and sections 66(1)(e), 83 and 116-B of the Gujarat Prohibition Act.
Page 2 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT2.1 In the FIR registered on 24.05.2020 (which shall hereinafter be referred to as the "first FIR"), nine police personnel have been named as accused persons. Out of the nine accused persons, the following accused have challenged the first FIR by filing applications as under;
(A) Criminal Misc. Application No.7754 of 2020 - By original accused No.4, 7 and 8.
(B) Criminal Misc. Application No.8473 of 2020 - By original accused No.5.
(C) Criminal Misc. Application No.8512 of 2020 - By original accused No.2.
(D) Special Criminal Application No.2511 of 2020 - By original accused No.6.
(E) Special Criminal Application No.3049 of 2020 - By original accused No.3.
2.2 In the subsequent FIR registered on 31.05.2020 (which shall hereinafter be referred to as the "second FIR"), two police personnel have been named as accused persons, who are also original accused No.1 and 2 in the earlier FIR registered on 24.05.2020. Both the accused persons have preferred the following matters challenging the second FIR;
(A) Criminal Misc. Application No.2772 of 2020 - By original accused No.1.
(B) Criminal Misc. Application No.8696 of 2020 - By original accused No.2.
3. The facts, in a nutshell, are as under;
Page 3 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENTOn 20.05.2020, the Office of the Commissioner of Police received an information that in a room being Room No.62 in the Police Staff Quarters situated behind Kadi Police Station, a stock of Indian Made Foreign Liquor (IMFL) has been allegedly kept in connivance with the accused persons named in the first complaint. Under the fear that the prohibited liquor would be tracked down, the stock of prohibited liquor was allegedly shifted to different vehicles, including the private vehicles which were requisitioned for use during lockdown period and were thereafter, transported to Narmada Canal passing through Sujatpura Village in Kadi and were destroyed by dumping it into the canal. The empty boxes were disposed of in the nearby bushes. In order to ascertain the veracity of the information, a special investigation team (SIT) was constituted on 21.05.2020 to carry out a preliminary inquiry. The SIT carried out necessary inquiry and also recorded statements of several witnesses. On 22.05.2020 the empty boxes of prohibited liquor, which were disposed of in the bushes, were seized by way of a panchnama. On 23.05.2020 a team of swimmers from the National Disaster Relief Force (NDRF) dived into the canal to collect details regarding the bottles of prohibited liquor which were disposed of into the canal. At the end of the day, the divers found 78 bottles of prohibited liquor in sealed condition, which were duly seized by way of a panchnama. On 24.05.2020 the team of NDRF divers again entered the canal waters. Around 54 sealed bottles containing prohibited liquor were recovered, which were duly seized by way of a panchnama. Both the room in which the muddamal liquor was stocked as also the vehicles in which they were transported were sealed.
3.1 The SIT also found that the prohibited liquor which was Page 4 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT kept at the police station as 'muddamal' was, in fact, kept as such illegally by the accused persons and was to be disposed of on 20.05.2020 for the purpose of deriving unlawful financial gain by the accused persons. The SIT found that on 20.05.2020, during the noon hours, one Car - "Ecosport", which was driven by P.S.I. - A.S. Bara (original accused No.3 in the first FIR) and five private vehicles, which were requisitioned for use during the lock-down period, were used by the accused persons for transporting the prohibited liquor for its disposal. One of the vehicles, viz. a private four-wheeler belonging to Kadi Sarva Vidyalaya, was used by original accused No.8 for transporting the prohibited liquor in connivance with others for its illegal sale with a view to derive unlawful financial gain. The SIT found that under the instructions of original accused Nos.1 & 2, the accused persons broke open the lock of Room No.62 of the Police Staff Quarters and loaded the stock of prohibited liquor into the six other vehicles and thereafter, transported the prohibited liquor to Narmada Canal area situated in Sujatpura Village, Kadi and dumped it into the Canal and thereby, destroyed the evidence. On the basis of the inquiry conducted by the SIT, on 24.05.2020 a complaint being FIR No.11206020201756 of 2020 was registered with Kadi Police Station.
3.2 It appears that on 24.05.2020 one of the members of the SIT directed the In-charge Police Inspector, Kadi Police Station, vide letter of even date, to carry out stock inspection of the muddamal lying with Kadi Police Station in presence of video- recording. On 25.05.2020 the said process was undertaken and it was noticed that around 5974 bottles of prohibited liquor were missing, whose total value was Rs.12.15 Lacs (rounded off) and Page 5 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT an excess stock of 1159 bottles, whose total value was Rs.3.10 Lacs (rounded off), were recovered. Thus, a complaint being FIR No.11206020201769 of 2020 was registered against the accused persons.
4. Mr. Yatin Oza, learned advocate for the applicants (In Cr.M.A. Nos.7754/2020, 8473/2020, 8512/2020 and 8696/2020), submitted that the stock of prohibited liquor was allegedly kept at three different places, viz. Room No.62 of the Police Staff Quarters, In the container kept in the compound of Kadi Police Station and in the ladies lock-up room of Kadi Police Station and the total value of the stock was assessed at approximately Rs.40 Lacs. However, in the complaint, the total value of confiscated liquor has been assessed at Rs.19,200/- only. It is surprising that a team of NDRF was called along with three teams headed by the I.G. (Gandhinagar), S.P. (Gandhinagar) and P.I. (Cyber Cell, Gandhinagar), which consisted of 65 police officials in all, for confiscating liquor which amounted to less than Rs.20,000/-. While attempting to draw a caste based angle to the entire controversy, it was contended by learned advocate Mr. Oza that the I.G., S.P., P.I. and Writer of the first complaint belong to 'Kshatriya' community and that no police official belonging to the said community have been arraigned as accused in any of the complaints.
4.1 Learned advocate Mr. Oza further submitted that the applicants are subordinate to original accused No.1, who is the Police Inspector of the police station. The applicants were following the instructions / orders issued by the original accused No.1 and therefore, they could not be held liable for the alleged Page 6 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT criminal act. It was contended that at the most, the applicant could be dealt with departmentally and no complaint could have been filed against them since the applicants were merely following the instructions of their superior officer.
4.2 It is further submitted that the applicants herein are not connected with the room in question, viz. Room No.62 of the Police Staff Quarters, where the alleged stock of prohibited liquor was kept. It was contended that the police personnel to whom the said room was allotted has not been named as accused in any of the complaints as it is beyond comprehension that prohibited liquor of such quantity could be stocked in the room without the knowledge of the occupier, which goes to show that the complaint has been filed with mala fide to target selected individuals.
4.3 Learned advocate Mr. Oza further submitted that original accused No.6, who is the applicant in Special Criminal Application No.2511 of 2020, did not hold any charge at Kadi Police Station on the date when the alleged offence was committed. It was pointed out that original accused No.6 has been transferred to some other police station and has been discharging duties at Village Moli, Taluka Vadnagar on account of the Covid-19 pandemic. It was, accordingly, urged that the complaint is false and concocted and has been filed with mala fide intention.
4.4 As regards the alleged role played by original accused No.8 (petitioner No.3 in Cr.M.A. No.7754 of 2020) and original accused No.9 are concerned, it is submitted that they both are serving as Home Guards. Both the accused have not played any Page 7 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT role in the alleged offence as they had refused to follow the instructions of original accused No.1, who happened to be their superiors, regarding illegal disposal of the prohibited liquor. Both these accused have been wrongly framed in the alleged offence.
4.5 Mr. Oza, learned advocate for the applicants, further submitted that original accused No.1, who was serving as the P.I. of Kadi Police Station, had dominion over the property as also official authority over other accused persons as he was their superior. All other accused persons are subordinate to original accused No.1 and in no way, were entrusted with the property or had any dominion over the property. It was submitted that in order to wreak vengeance against the Police Inspector, viz. original accused No.1, the other subordinate police personnel have been arraigned as accused.
4.6 As regards the alleged role played by original accused No.5 (applicant in Criminal Misc. Application No.8473 of 2020) is concerned, it is submitted that the petitioner is serving as Head Constable at Kadi Police Station but his duties are outside the police station, i.e. in the PCR Van. It was submitted that on the day when the raid was conducted, the petitioner herein was on weekly day off as he had rendered 24 hours duty on the previous day only. Therefore, as such, the petitioner herein had not played any role in the alleged offence.
4.7 As regards original accused No.2 (applicant in Criminal Misc. Application No.8512 of 2020) is concerned, it was submitted by learned advocate Mr. Yatin Oza that the said petitioner is no way attached to Room No.62 where it is alleged Page 8 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT that the stock of prohibited liquor was kept as the keys thereof were in the custody of original accused No.1-P.I.. The absolute in charge of all the muddamal in any police station is the Crime Writer Head, who works under the supervision of the P.I. of the police station. It was, accordingly, urged that the original accused No.2 is not connected with the alleged offence in any matter whatsoever.
4.8 In support of his submissions, learned advocate Mr. Oza placed reliance upon an unreported decision rendered by the learned single Judge of this Court in Criminal Misc. Application No.1485 of 1988 decided on 27.07.1988 as also on another unreported decision rendered by the Division Bench of this Court in Letters Patent Appeal No.4 of 1992 decided on 29.06.1992.
4.9 Learned advocate Mr. Oza also placed reliance upon the decision of the Apex Court in the case of Shashi Bhushan Prasad v. CISF, (2019) 7 SCC 797, to bring home the point that the applicants could be dealt with departmentally for the alleged misconduct. In the above-referred case, it has been held that the object of criminal trial is to inflict appropriate punishment on the offender; while the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules and that the degree of proof necessary to convict the offender is different from the degree of proof necessary to record commission of delinquency. It was submitted that considering the allegations made in the complaints, it would be appropriate that the applicants are dealt with departmentally and not in criminal trial.
Page 9 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT5. Mr. M.R. Molavi, learned advocate appearing for the applicant in Special Criminal Application No.2511 of 2020 (original accused No.6 in the first FIR) submitted that the applicant herein was not holding any charge at Kadi Police Station at the time when the alleged offence was committed. It was submitted that from 24.04.2020 to 30.04.2020 the applicant herein was posted for police 'bandobast' at Rana Vas area in Mahesana and thereafter, from 01.05.2020 to 24.05.2020, he was posted at Molipur Village, Vadnagar Taluka on 'bandobast' duty. It was pointed out that the alleged offence was committed on 20.05.2020 during which time, the applicant was on duty at Vadnagar. Further, there is no averment against the applicant herein in the entire complaint. It was, accordingly, urged that the complaint filed against the applicant is a clear abuse of the process of law and deserves to be quashed and set aside qua the applicant herein.
5.1 Mr. Molavi, learned advocate for the applicant, submitted that though the applicant herein had earlier preferred Criminal Misc. Application No.7620 of 2020 regarding the same subject matter before this Court, which came to be disposed of as withdrawn, the same will not disentitle the applicant from approaching the High Court second time under section 482 CrPC. In support of such time, reliance was placed upon the decision rendered by a single Judge of this Court in the case of R.S. Shah, Competent Authority, Guj. Slums Clearance Board v. Vinod H. Brahmbhatt and another, 1995 (1) GLH 923 wherein, it has been held that the unconditional withdrawal of an earlier application filed under section 482 CrPC does not amount to dismissal of the same and thereby dis-entitling the Page 10 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT petitioner to approach the High Court second time under section 482 CrPC and that the petitioner is still entitled to invoke the very same inherent power under the CrPC to quash the proceedings arising out of the very same complaint in changed circumstances.
6. Mr. J.H. Sindhi, learned advocate appearing for the applicant in Special Criminal Application No.3049 of 2020 (original accused No.3 in the first FIR), submitted that the room in question was allotted to one Assistant Sub Inspector deputed at Kadi Police Station; however, the said person has not been arraigned as accused. Further, the Crime Writer of the police station, who is the sole custodian of every muddamal in the police station, has also not been arraigned as accused nor has been held responsible for any discrepancy with regard to the stock of muddamal, which is the subject matter of the second FIR. It was further submitted that the applicant herein is nowhere seen in the convoy of the six other vehicles leaving the police station, as can be seen from the CCTV footages of the camera installed at the police station. The vehicle of the applicant, which could be seen in the CCTV footage of having passing in front of the police station, was the moment during which the applicant had left for his duty for attending a meeting with the Dy.S.P. and it was the only route through which the applicant could leave the police lines. It was, accordingly, urged that the applicant has not played any role in the alleged offence and has been wrongly arraigned as an accused.
7. Mr. Jal Soli Unwala, learned advocate appearing for applicant-original accused No.1 (in connection with the second Page 11 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT FIR), has limited his argument only on the point of law that a second FIR arising out of the same allegations for which an FIR has already been registered is not sustainable in the eyes of law. It was submitted that a bare perusal of both the FIRs and the allegations made therein would show that the offences alleged to have been committed by the applicant herein in the second FIR, are the offences which are connected to and in pursuance of the offences as alleged to have been committed by him in the first FIR and arise from the same transaction for which the first FIR was filed against the applicant. It is contended that if the second FIR is allowed to survive, then it would result in gross abuse of the process of law and will violate the principle of double jeopardy inasmuch as the applicant will be made to face prosecution arising out of two separate FIRs for the very same allegations.
7.1 In support of his submissions, learned advocate Mr. Unwala placed reliance upon the decision of the Apex Court in the case of T.T. Anthony v. State of Kerala and others, (2001) 6 SCC 181, wherein it has been held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offences and only information about commission of a cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR under section
154. All subsequent information will be covered by section 162. It is further held that the Officer in charge of the 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 Page 12 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT occurrence and file one or more reports as provided in section
173. It has been further held that a just balance has to be struck between citizen's rights under Articles 19 and 21 and the expansive power of police to make investigation since after registering the FIR and commencing investigation, registering of second FIR or successive FIRs in respect of the same incident and crime and making of fresh investigations pursuant thereto would be irregular, which call for interference with the fresh investigation to prevent abuse of statutory power of investigation or otherwise to secure ends of justice.
7.2 Reliance was also placed on the decision of the Apex Court in the case of Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 and more particularly, on the observations made in paragraphs No. 58.2 to 58.9, which reads thus;
"58.2. The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Sections 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.
58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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, which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154,155,156,157,162,169,170 and 173 of the Code, only the earliest or the first information report in regard to the Page 13 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT commission of a cognizable offence satisfies the requirements of Section 154 of the Code. 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.
58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizahle offence or offences and on entering FIR in the station house diary, the officer in charge of the 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 or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FlR 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 underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.
58.6. In the case on hand, as explained in the earlier paragraphs, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25-11-2005 / 26-11-2005. We have already concluded that this Court having reposed faith in CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Page 14 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT Kausarbi were killed and directed CBI to "take up" the investigation.
58.7. For vivid understanding, let us consider a situation in which Mr. A having killed B with the aid of C, informs the police that unknown persons killed B. During investigation, it revealed that A was the real culprit and D abetted A to commit the murder. As a result, the police officer files the charge-sheet under Section 173(2) of the Code with the Magistrate. Although, in due course, it was discovered through further investigation that the person who abetted Mr. A was C and not D as mentioned in the charge-sheet filed under Section 173 of the Code. In such a scenario, uncovering of the later fact that C is the real abettor will not demand a second FIR rather a supplementary charge-sheet under section Section 173(8) of the Code will serve the purpose.
58.8. Likewise, in the case on hand, initially, CBI took a stand that the third person accompanying Sohrabuddin and Kausarbi was Kalimuddin. However, with the aid of further investigation, it unveiled that the third person was Tulsiram Prajapati. Therefore, only as a result of further investigation, CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted; instead filing of a supplementary charge-sheet in this regard will suffice the issue.
58.9 Administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. Accordingly, 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. As a consequence, in our view this is a fit case for quashing the second FIR to meet the ends of justice.Page 15 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT
58.10. The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same."
7.3 Lastly, reliance was placed on the decision of the Apex Court in the case of Arnab Ranjan Goswami v. Union of India and others, 2020 SCC OnLine SC 462 and more particularly, on the observations made in paragraph-28, which reads thus;
"28. The fundamental basis on which the jurisdiction of this Court has been invoked under Article 32 is the filing of multiple FIRs and complaints in various States arising from the same cause of action. The cause of action was founded on a programme which was telecast on R Bharat on 21 April 2020. FIRs and criminal complaints were lodged against the petitioner in the States of Maharashtra, Rajasthan, Madhya Pradesh, Telengana and Jharkhand besides the Union Territories of Jammu and Kashmir. The law concerning multiple criminal proceedings on the same cause of action has been analyzed in a judgment of this Court in TT Antony v. State of Kerala ("TT Antony"). Speaking for a two judge Bench, Justice Syed Shah Mohammed Quadri interpreted the provisions of Section 154 and cognate provisions of the CrPC including Section 173 and observed:
"20. ..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 Page 16 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT 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 CrPC."
The Court held that "there can be no second FIR" where the information concerns the same cognizable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences. This is due to the fact that the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the CrPC. The court observed:
"18. .All other information 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 CrPC. 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 CrPC."
This Court adverted to the need to strike a just balance between the fundamental rights of citizens under Articles 19 and 21 and the expansive power of the police to investigate a cognisable offence. Adverting to precedent, this Court held:
"27. ..the sweeping power of investigation does not Page 17 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT 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 FlRs 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."
(Emphasis supplied) The Court held that barring situations in which a counter- case is filed, a fresh investigation or a second FlR on the basis of the same or connected cognisable offence would constitute an "abuse of the statutory power of investigation" and may be a fit case for the exercise of power either under Section 482 of the CrPC or Articles 226/227 of the Constitution."
7.4. It was, accordingly, urged that the continuance of prosecution in the form of the second complaint is a clear abuse of the process of law as also the principle rendered by the Apex Court and, hence, the second complaint deserves to be quashed and set aside.
8. Insofar as the applicant in Cr.M.A. No.8696 of 2020 (original accused No.2 in the second FIR) is concerned, Mr. Yatin Oza, learned advocate, adopted the submissions advanced by learned advocate Mr. Jal Soli Unwala appearing for the Page 18 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT applicant-original accused No.1 in the second FIR.
9. Ms. Ashlesha Patel, learned advocate, adopted the submissions made by learned advocates Mr. Yatin Oza and Mr. Jal Soli Unwala appearing on behalf of the original accused persons.
10. Mr. Mitesh Amin, learned Public Prosecutor, submitted that the applicants, original accused persons, were involved in the business of sale of prohibited liquor. As per the prescribed procedure, the in-charge authority of a police station has to seek permission from the Sessions Court concerned for destroying muddamal articles. In the present case, such permission was obtained from the Sessions Court concerned and in pursuance thereof, inspections of the muddamal articles were carried out. On such inspection, it was found that the quantity of prohibited liquor lying at Kadi Police Station was greater than the official record and such excess stock were kept in Room No.62. It was submitted that the applicants herein were very much present at the time of inspection and were also aware that the unaccounted muddamal articles were kept in Room No.62. When information regarding the illegal activities being carried out by the applicants was received by the competent authority, a SIT was constituted. However, on hearing the rumours about the formation of the SIT, the accused decided to dispose of the additional muddamal articles since the excess prohibited liquor would establish that the applicants were into the business of sale of prohibited liquor. Therefore, the applicants decided to dispose of the additional prohibited liquor, which exercise they undertook on 20.05.2020. For disposing of the articles, the applicants used the Page 19 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT requisitioned private vehicles, which were provided to Kadi Police Station for use in the prevailing pandemic. The accused persons also used two other private four-wheeler, viz. a Tata Winger and a Mahindra Scorpio. The applicants broke open Room No.62 and uploaded the prohibited liquor in the requisitioned vehicles as well as private vehicles. However, to the bad-luck of the applicants, their actions were captured in the CCTV camera of Kadi Police Station. Apart from the CCTV footage, the driver of the private vehicle gave detailed account of the events which unfolded on 20.05.2020, along with the statements of other witnesses. The SIT found that the prohibited articles had been shifted from Room No.62 and some portion of such articles were thrown away and destroyed in Narmada Canal passing through Sujatpura Village. It was further submitted that under instructions of the competent authority, a panchnama of the stock of prohibited liquor at Kadi Police Station was carried out and liquor bottles worth Rs.12 Lacs approximately, which were officially seized in different offences, were missing whereas, unaccounted liquor bottles worth Rs.3 Lacs approximately were found. These facts reveal that the applicants were into the business of prohibited liquor.
10.1 Learned Public Prosecutor drew attention of the Court to the affidavit-in-reply filed on behalf of respondent No.1 wherein, different instances have been narrated to establish that the applicants were involved in the business of prohibited liquor in the police station premises.
10.2 Mr. Amin, learned Public Prosecutor, further submitted that the investigation is at a nascent stage and that Page 20 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT more bottles have been recovered during the course of investigation of the complaints. It was submitted that the applicants are police officials and they are bound to perform their legal duties. Their illegal acts cannot be justified to have been done at the pretext of orders given by a superior police officer. It was, accordingly, urged that no relief may be granted in favour of the applicants and all the applications may be rejected.
11. Heard learned advocates on both the sides and perused the material on record. In the first FIR registered on 24.05.2020, the original complainant has narrated in detail the entire sequence of events that unfolded, viz. right from the date of commission of the offence on 20.05.2020 till the date of registration of the first FIR on 24.05.2020. In the first FIR, categorical averments have been made as regards the alleged role played by each accused person. The complainant has averred in detail as to how the prohibited liquor, which was stocked in Room No.62 of the Police Staff Quarters, were unloaded into five private vehicles (Vans) that were requisitioned by Kadi Police Station for use during the prevailing pandemic and into two other private vehicles for the purpose of shifting the prohibited liquor to different places and for destroying it by dumping it into the Narmada Canal passing through Sujatpura Village. The complainant has also averred as to how the team of NDRF divers recovered several sealed bottles of prohibited liquor from Narmada Canal during the search operations conducted on 23.05.2020 and 24.05.2020. The SIT allegedly found that the articles, which were recovered during the above operation, formed part of the "unaccounted" stock of muddamal liquor. During the course of investigation, the SIT Page 21 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT also allegedly found that the entire stock of muddamal liquor loaded from Room No.62 has not been destroyed by the accused persons by dumping it into the Narmada Canal and that some stock of the muddamal liquor has been shifted to some other place. Specific allegation has been made against original accused No.8 regarding such stock of un-recovered prohibited liquor. The SIT has recovered empty boxes of liquor which were disposed of in the bushes adjacent to the canal area. The statement of the driver of the 'Tata Winger' Car and four other witnesses, including the Crime Writer Head of Kadi Police Station, have been recorded, which, prima facie, show the involvement of the accused persons.
12. As per the averments made in the affidavit-in-reply filed on behalf of the respondent State, it appears that in the process undertaken by the Committee constituted for the purpose of verification and counting of the muddamal articles lying at Kadi Police Station in pursuance of the permission granted by the Sessions Court concerned, the quantity of prohibited liquor was found to be in greater quantity than what was officially available as per the record.
13. As regards the second FIR which came to be registered on 31.05.2020, it may be noted that the same has been filed for the alleged offences punishable under sections 409, 420, 120-B and 34 of IPC and sections 66(1)(e), 83 and 116-B of the Gujarat Prohibition Act. In the first complaint, which was registered on 24.05.2020, the offences alleged were under sections 409, 431, 201, 120-B and 34 of IPC and sections 65(e), 81, 83 and 116-B of the Gujarat Prohibition Act. The main allegation in the second Page 22 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT FIR registered on 31.05.2020 is that upon receipt of the order from a member of the SIT formed for the purpose of conducting inquiry, which resulted into the filing of the first complaint on 24.05.2020, a calculation / verification of the entire stock muddamal captured from various offences and lying at Kadi Police Station was conducted and it was found that there was a deficit of about 5974 bottles of liquor with the total value of Rs.12.15 Lacs (rounded off) and an excess of 1159 bottles of liquor with total value of Rs.3.10 Lacs (rounded off). It was, accordingly, alleged that the accused named in the complaint, with a view to derive illegal gains, had sold the captured muddamal prohibited liquor or for any other reason, shifted them from the police station and had brought and kept the liquor with the seized muddamal liquor though such muddamal was not seized as such in any offence.
14. It is the say of the applicants that the first FIR deserves to be quashed and set aside as the same is false, vexatious and malicious and that the second FIR also deserves to be quashed and set aside as it relates to the same cause of action. The decision rendered by the Apex Court in T.T. Anthony's case (supra), which has been reiterated in Amitbhai Anilchandra Shah and Arnab Ranjan Goswami's cases (supra), governs the law on the subject and there is no dispute regarding the same. It has been held in T.T. Anthony's case (supra), 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 decision rendered in T.T. Anthony's case (supra) came up for consideration before a three Judge Bench of the Apex Court in Page 23 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT the case of Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, wherein it has been held as under;
"It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T.T. Antony vs. State of Kerala & Ors. has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. In our opinion, this Court in that case only held 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 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 counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident."
15. In Upkar Singh's case (supra), it has been held that 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 on under both of them by the same investigating agency. In the judgment rendered in the case of Babubhai v. State of Gujarat, (2010) 12 SCC 254, the Apex Court has considered the issue regarding permissibility of more than one FIR and the "test of sameness". It was held that the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness has 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, having two or more parts, of the same transaction.
16. In the present case, the second FIR relates to the huge variation in the stock of muddamal articles kept at Kadi Police Page 24 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT Station. It alleges that on verification / inspection of the muddamal articles, it was found that there was a deficit of about 5974 bottles of liquor with the total value of Rs.12.15 Lacs (rounded off) and an excess of 1159 bottles of liquor with the total value of Rs.3.10 Lacs (rounded off). If the allegations / contents of the first FIR are seen, the same relates to the conspiracy and the alleged role played by each accused person as also the manner in which the stock of muddamal prohibited liquor was shifted from one place to another with a view to sell / destroy it. This Court is mindful of the fact that a just balance has to be struck between the fundamental rights of citizens under Articles 19 and 21 and the expansive power of the police to investigate a cognizable offence. However, at the same time, the Court is also required to look into whether the second FIR or any subsequent FIR relates to the same incident or incidents which form part of the same transactions. In the opinion of this Court, the contents / allegations made in the second FIR are distinct and different to the allegations made in the first FIR. Where the first FIR mainly relates to the alleged role played by each accused person and the alleged manner in which the accused persons had attempted to dispose of the muddamal prohibited liquor, the second FIR mainly relates to the huge variation in the stock of muddamal liquor lying in the police station. In respect of the first FIR while the CCTV footage of the camera installed at the police station, the statement of the driver of the private vehicle used in the commission of the alleged offence as also the statement of other witnesses named in the FIR and the panchnamas, prima facie, reveal the involvement of the applicants-accused persons, in case of the second FIR, necessary investigation is required to ascertain as to how there Page 25 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT was a deficit of about 5974 bottles of liquor with the total value of Rs.12.15 Lacs (rounded off) and an excess of 1159 bottles of liquor with the total value of Rs.3.10 Lacs (rounded off) suggesting how the keys of Room No.62 were with the accused persons named therein, which aspect may reveal the involvement of more accused persons and may even remove the lid off from a larger conspiracy. Hence, in my opinion, the decision rendered in T.T. Anthony's case (supra) could not come to the rescue of the applicants-accused in the second FIR.
17. Insofar as the principle rendered in Shashi Bhushan Prasad's case (supra) is concerned, there is no dispute regarding the proposition of law laid down therein and this Court is in complete concurrence with the principle laid down therein. Criminal trial and departmental proceedings are two things. However, considering the serious allegations leveled against the applicants, who are police personnel and the law enforcing individuals in the society, it is expedient that the law takes its own course and the guilty is inflicted with the appropriate punishment. It is expected from the police, who are law enforcement officials, that they shall, at all times, respect and obey the law. Hence, in the fitness of things and in the larger interest of the society, it is necessary that both the complaints are duly investigated and inquired into so that the truth is revealed. Hence, the decision relied upon by learned advocate for the applicants would not be of any help to the applicants at this stage. It may assist the applicants departmentally, if, ultimately, the applicants are acquitted by the competent criminal Court; however, at this stage, the said decision shall not be of any help to the applicants.
Page 26 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT18. Insofar as the decision rendered in R.S. Shah, Competent Authority, Guj. Slums Clearance Board's case (supra) is concerned, the accused has to establish the existence of "change in circumstances" if his second application under section 482 CrPC is to be entertained; but, if the accused fails to do so, then the unconditional withdrawal of his earlier application filed under section 482 CrPC would tantamount to dismissal of the application and thereby, disentitling him from approaching the Court second time. In the present case, the applicant-accused in Special Criminal Application No.2511 of 2020, had earlier preferred a similar application in Criminal Misc. Application No.7620 of 2020. The said application was disposed of by this Court as having been withdrawn. The applicant has not been able to establish any "change in circumstances" as would entitle him to file a second petition under section 482 CrPC. Under the circumstances, Special Criminal Application No.2511 of 2020, being the second petition filed under section 482 CrPC after the first petition being Criminal Misc. Application No.7620 of 2020 was disposed of on the ground of unconditional withdrawal, could not be entertained as the applicant has been unsuccessful in establishing that there has been a "change in circumstances"
warranting interference by this Court in the second petition.
19. A contention was raised by learned advocate Mr. Oza that the applicants were merely following the orders/instructions given by their superior officer, who is the original accused No.1- Police Inspector and therefore, the applicants could not be held liable for the alleged acts; however, in the opinion of this Court, said submission made by learned advocate Mr. Oza is devoid of Page 27 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT any merits since the applicants, who are police officials, are required to perform acts, which are legal. The applicants are governed by the provisions of the Gujarat Police Manual and they cannot take shelter under the umbrella of orders/instructions issued by the superior officer if their act itself is illegal. The applicants had the option to keep themselves away from the activity of unloading the muddamal prohibited liquor from Room No.62 and of destroying the stock by dumping it into the canal. However, by participating in the aforesaid illegal act, the applicants equally stand liable for the illegal acts even if the same may have been performed under the instructions of the superior police officer. Hence, the said contention raised by the learned advocate for the applicants does not deserve consideration. The applicants have also alleged that they have been implicated in the alleged offence only because of caste bias. This Court does not find any substance in the said submission made by learned advocate for the applicants as there is nothing on record to substantiate such claim. Such assertion, at this stage, would amount to self-serving bias.
20. At this juncture, it would be relevant to refer to the judgment of the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, wherein the Apex Court has observed thus;
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and Page 28 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT inflexible guide myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Page 29 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
21. The expression "ends of justice" and "to prevent abuse of the process of any Court" used in section 482 CrPC are intended to work both ways. It is to be seen that innocent person is not subjected to undeserving prosecution but at the same time, it is to be guarded that deserving prosecution is not throttled at the threshold. A just balance has to be struck between citizen's rights under Articles 19 and 21 and the expansive power of the police to make investigation. Considering the principle laid down by the Apex Court in Bhajan Lal's case (supra) and the allegations made in both the complaints, this Court is of the view that no relief could be granted in favour of the applicants, particularly when, the applicants have failed to show that neither of the complaints do not disclose any offence and the investigation into both the complaints is at an advanced stage. The statements of some of the witnesses have been recorded. It also appears that certain quantity of muddamal prohibited liquor is yet to be traced as the entire stock had not been dumped into the canal. Further, in respect of the second FIR, necessary investigation is also required to be undertaken regarding the huge variation in the stock of muddamal articles that was kept at Kadi Police Station. Keeping in mind the fact that the applicants are police personnel and the manner in which the events unfolded right from the date the muddamal articles were unloaded to the private vehicles for the purpose of its destruction to the date on which the second complaint was registered, detailed investigation is necessary in order to go into the root of the matter. In my opinion, no relief could be granted Page 30 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020 R/CR.MA/7754/2020 CAV JUDGMENT in favour of the applicants in exercise of the inherent powers under section 482 CrPC.
22. For the foregoing reasons, all the petitions are rejected. It is made clear that the observations made in this judgment are for the purpose of deciding the present matters and that any proceeding that may be initiated by any of the parties shall be considered independently and on its own merits being uninfluenced by the observations made in this order. Rule is discharged. Interim relief, if any, stands vacated.
(GITA GOPI, J) NEHA GUPTA/pravin 2 Page 31 of 31 Downloaded on : Wed Sep 09 00:18:53 IST 2020