Rajasthan High Court - Jaipur
Bhori Lal @ Bhoriya vs State Of Raj And Anr on 4 April, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misccellaneous (Petition) No. 1275/2018
Bhori Lal @ Bhoriya S/o Shri Kana Ram, B/c Haryana Brahmin,
R/o Village Devri, Gopalpura Bypass, Police Station Mansarovar,
Jaipur (Raj.)
----Petitioner
Versus
1. State Of Rajasthan Through Pp.
2. Sushil Bhageriya S/o Shri Rameshwar Lal Bhageriya, R/o
House No. B-143, Saket Colony, Adarsh Nagar, Jaipur
(Raj.), Director, Arjun Colonizers Pvt. Ltd. Having Its
Registered Office At 4, Transport Nagar, Agra Road, Jaipur
(Raj.)
----Respondents
Connected With
S.B. Criminal Misccellaneous (Petition) No. 693/2018
Shushil Bhageria S/o Shri Rameshwar Lal Bhageria, Aged About
62 Years, R/o B-143, Saket Colony, Adarsh Nagar, Jaipur City
(East) Director Of Arjun Colonizers Private Limited, Registered
Office At No. 4, Transport Nagar, Agra Road, Jaipur
----Petitioner
Versus
1. State Of Rajasthan Through Pp.
2. Dy. Commissioner, Zone-5, Jaipur Development Authority,
Jaipur
3. Rajesh Sonkhiya S/o Ramavatar Gupta, B/c Mahajan, R/o
House No.23-A, Saket Colony, Adarsh Nagar, Jaipur
4. Hargovind Nirbhik S/o Kesar Lal Nirbhik, B/c Khatik, R/o
House No. 55/110, Rajat Path, Mansarovar, Jaipur
5. Lachma Devi W/o Bhonrilal Mehra, B/c Mehra, R/o Devri,
Shipra Path, Mansarovar, Jaipur
6. Karni Singh Choudhan S/o Madan Singh Chouhan, B/c
Rajput, R/o House No. 15, Malviya Nagar, Jaipur
7. Puneet Sonkhiya S/o Subhash Chand Gupta, B/c
Mahajan, R/o Hosue No. 8, Dayanand Path, Janta Colony,
Jaipur
8. Vimla Devi W/o Ramavatar Gupta, B/c Mahajan, R/o A23-
(2 of 9) [CRLMP-1275/2018]
A, Saket Colony, Adarsh Nagar, Jaipur
9. Prem Sharma S/o Raj Kumar Sharma, B/c Brahmin, R/o
House No. 55/110, Rajat Path, Mansarovar, Jaipur
10. Mahesh Prasad Gupta S/o Ramgopal Sonkhiya, B/c
Mahajan, R/o House No. 64, Keshar Vikar, Gopalpura
Byepass, Jaipur
11. Deepak Saini S/o Munna Lal Saini, B/c Mali, R/o House
No.8, Prakash Vihar Gopalpura Byepass, Jaipur
12. Mohan Lal Meena S/o Jhutharam Meena, B/c Meena, R/o
Devri, Gopalpura Byepass, Jaipur
13. Ashish Kumar Garg S/o Shri Goyal Shankar Garg, B/c
Mahajan, R/o Gurjar Ki Thadi, Gopalpura Byepass, Jaipur.
14. Rajesh Meena S/o Badri Lal Meena, B/c Meena, R/o
55/100, Mansarovar, Jaipur
15. Ram Nagar Grah Nirman Shahkari Samiti Limited,
Through Its Secretary/president Ramjilal Borwal Jaipur
Registered Office At Prem Nagar Colony, Lottory Walloen
Ki Gali, Malpura Road, Sanganer, Jaipur
----Respondents
For Petitioner(s) : Mr. Prahalad Sharma
For Respondent(s) : Mr. NS Dhakad PP
Mr. Aditya Sharma
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
04/04/2018
SBCRLMP No. 1275/2018:
The present petition has been filed under Section 482
Cr.P.C., praying that the case FIR No. 39/2018 registered at Police
Station Mansarovar, Jaipur City (South) for the offences under
Sections 420, 467, 468, 471 and 120B IPC be quashed as qua
same land by the same company, through another Director earlier
FIR bearing No. 106/2002 was registered and the proceedings
(3 of 9) [CRLMP-1275/2018]
arising thereof are pending before the court of Additional
Metropolitan Magistrate No.20, Jaipur.
Briefly stated, Sushil Bhagoriya submitted a complainat
against thirteen persons stating therein that he is Director of Arjun
Colonizers Pvt. Ltd. and the said company had purchased an
agricultural land measuring 1.79 hectare falling within different
khasras in village Devari, Patwar Area Mangiyawas, Tehsil
Sanganer. It is further stated that Jaipur Development Authority
under Section 90B of Rajasthan Land Revenue Act, had allowed
conversion of the user. It is further stated that when employees
and workers of the company went to take possession, accused
named in the FIR threatened the employees and workers of the
company. It is further stated that accused no. 1 to 7 and 13 have
forged the false lease deed qua the same land.
The said complaint was filed in the court of Additional
Chief Judicial Magistrate No.6, Jaipur Metropolitan, Jaipur. The said
court passed orders under Sections 156(3) Cr.P.C., as a result
thereof, impugned FIR No. 39/2018 was registered at Police
Station Mansarovar, Jaipur City (South) for the offences under
Sections 420, 467, 468, 471 and 120B IPC.
The learned counsel for the petitioner has submitted
that earlier also by another Director of the company, FIR No.
106/2002 was lodged at the same police station alleging therein
that the accused have forged and fabricated the lease deed. It is
contended that the proceedings arising out of the FIR pertaining to
year 2002 are pending in the court of Metropolitan Magistrate
No.20, Jaipur.
Sub Inspector, Mahendra Singh, Police Station
Mansarovar, Jaipur being investigating officer of the case is
(4 of 9) [CRLMP-1275/2018]
present in the court. The learned Public Prosecutor on instructions
from Mr. Mahendra Singh the investigating officer, has submitted
that qua same land regarding forgery of the lease deed, indeed
earlier FIR was registered and after completion of investigation,
charge-sheet was submitted therein. The learned Public
Prosecutor on instructions from investigating officer has submitted
that since the present complaint was received under Section
156(3) Cr.P.C., police was bound to comply with the directions
issued by the court of concerned Magistrate and hence, the
second FIR was registered.
Mr. Aditya Sharma, the learned counsel for the
complainant has submitted that the petitioner is a different
Director, though the company is same but he has lodged the
present FIR in his individual capacity. The learned counsel for the
complainant has not denied that qua same allegations earlier FIR
was lodged by another Director. However, he has submitted that in
the present case, accused who have forged the documents are
different.
I have heard the learned counsel for the parties.
It is undeniable fact that the qua same cause of action,
earlier FIR was registered in the year 2002 and that too at the
instance of the same company but by a different Director,
pertaining to same land. Thus, rightful course for the complainant
company was to file an application under Section 319 Cr.P.C. to
summon the persons named as accused in second FIR as
additional accused, in the FIR pertaining to the first case.
However, qua the same cause of action second FIR could not be
lodged.
(5 of 9) [CRLMP-1275/2018]
It will be appropriate to reproduce following
observations made by the Supreme Court in Amitbhai
Anilchandra Shah v. Central Bureau of Investigation & Anr.,
(2013) 6 SCC 348:
"37. This Court has consistently laid down the law on the issue
interpreting the Code, that a second FIR in respect of an
offence or different offences committed in the course of the
same transaction is not only impermissible but it violates
Article 21 of the Constitution. In T.T. Anthony (supra), this
Court has categorically held that registration of second FIR
(which is not a cross case) is violative of Article 21 of the
Constitution. The following conclusion in paragraph Nos. 19, 20
and 27 of that judgment are relevant which read as under:
19. The scheme of Code of Criminal Procedure is that an
officer in charge of a police station has to commence
investigation as provided in Section 156 or 157 Code of
Criminal Procedure 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 the evidence collected, he has to
form an opinion Under Section 169 or 170 Code of
Criminal Procedure, as the case may be, and forward his
report to the Magistrate concerned Under Section
173(2) Code of Criminal Procedure. 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 Code of
Criminal Procedure.
20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 Code of Criminal Procedure only the
earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 Code of Criminal Procedure.
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
giving rise to a cognizable offence or offences and on
entering the FIR in the station house diary, the officer in
(6 of 9) [CRLMP-1275/2018]
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 Code of Criminal Procedure.
27. A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and
the expansive power of the police to investigate a
cognizable offence has to be struck by the court. There
cannot be any controversy that Sub-section (8) of
Section 173 Code of Criminal Procedure empowers the
police to make further investigation, obtain further
evidence (both oral and documentary) and forward a
further report or reports to the Magistrate. In Narang
case it was, however, observed that it would be
appropriate to conduct further investigation with the
permission of the court. However, the sweeping power of
investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the
same incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRs
whether before or after filing the final report Under
Section 173(2) Code of Criminal Procedure. It would
clearly be beyond the purview of Sections 154 and 156
Code of Criminal Procedure, 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 Code of Criminal Procedure or under
Articles 226/227 of the Constitution.
The above referred declaration of law by this Court has never
been diluted in any subsequent judicial pronouncements even
while carving out exceptions.
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54. In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the (7 of 9) [CRLMP-1275/2018] killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior Counsel for the Petitioner, in Ramlal Narang (supra), the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case.
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58.1. This Court accepting the plea of the CBI in Narmada Bai (supra) that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed the CBI to "take over" the investigation and did not grant the relief prayed for i.e., registration of a fresh FIR. Accordingly, filing of a fresh FIR by the CBI is contrary to various decisions of this Court.
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 evidence collected, Investigating Officer has to form an opinion Under Section 169 or 170 of the Code and forward his report to the concerned Magistrate 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 in regard to the 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 cognizable offence or offences and on entering FIR in the Station House Diary, the (8 of 9) [CRLMP-1275/2018] 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 one 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 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 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 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.
This Court finds no justification to register second FIR qua the same land on same allegations that too after sixteen years of the first occurrence.
Even if this Court accept the plea raised by the learned counsel for the complainant that the accused now named in the FIR are different, this Court cannot ignore that the issue regarding the validity or genuineness of the lease deed is subject matter of earlier FIR and qua same trial is pending. Therefore, the rightful course for the complainant company is to file an application under Section 319 Cr.P.C., before the trial court in case evidence has commenced in the trial arising out of the earlier FIR. In case evidence has not commenced, application can be filed under Section 190 Cr.P.C. for taking cognizance against other accused who are (9 of 9) [CRLMP-1275/2018] guilty of forging the lease deed and have not been sent for trial.
In view of above, impugned FIR No. 39/2018 registered at Police Station Mansarovar, Jaipur City (South) for the offences under Sections 420, 467, 468, 471 and 120B IPC being second FIR not maintainable is quashed with above said liberty to the complainant company. Nothing said herein shall affect the merits of the case, which is pending arising out of first FIR bearing No. 106/2002, registered at Police station Mansarovar, Jaipur for the same offences.
At this stage, the learned counsel for the complainant has submitted that liberty may be granted to the complainant to file a fresh complaint in the court of competent Magistrate by taking recourse to Section 210 Cr.P.C.
Liberty as prayed for may be availed in case same is legally tenable.
SBCRLMP No.693/2018:
Mr. Aditya Sharma, the learned counsel for the complainant/petitioner in SBCRLMP No. 693/2018 has submitted that in view of the order of even date passed in SBCRLMP No. 1275/2018 titled Bhori Lal @ Bhoriya vs. State of Rajasthan & Anr., nothing survives in the present petition and hence, same may be disposed of.
Ordered accordingly.
(KANWALJIT SINGH AHLUWALIA),J Mak/-