Gujarat High Court
Dineshbhai Purshottambhai Patel vs State Of Gujarat on 17 February, 2017
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/2402/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2402 of 2014
TO
CRIMINAL MISC.APPLICATION NO. 2403 of 2014
With
CRIMINAL MISC.APPLICATION NO. 20928 of 2014
With
CRIMINAL MISC.APPLICATION NO. 20945 of 2014
With
CRIMINAL MISC.APPLICATION NO. 20947 of 2014
With
CRIMINAL MISC.APPLICATION NO. 24146 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 7520 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 7386 of 2015
With
CRIMINAL MISC.APPLICATION NO. 20446 of 2013
TO
CRIMINAL MISC.APPLICATION NO. 20449 of 2013
With
CRIMINAL MISC.APPLICATION NO. 462 of 2014
With
CRIMINAL MISC.APPLICATION NO. 1217 of 2014
With
CRIMINAL MISC.APPLICATION NO. 18388 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18389 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18390 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18391 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18690 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18691 of 2013
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
==========================================================
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 ?
==============================================================
DINESHBHAI PURSHOTTAMBHAI PATEL
AND OTHERS ....Petitioners
Versus
STATE OF GUJARAT
AND ANOTHER ....Respondents
===============================================================
Appearance:
MR.HRIDAY BUCH, ADVOCATE ,
MR. CHETAN PANDYA, ADVOCATE
MR.SHAKEEL QURESHI, ADVOCATE
MR.ARPIT KAPADIA, ADVOCATE
and
MR.N.D.NANAVATI, SR ADVOCATE with
MR.HARDIK JANI, ADVOCATE and
and
MR. MIHIR JOSHI, SR ADVOCATE for
NANAVATI ASSOCIATES,
and
MR.R.R.MARSHALL, SR ADVOCATE with
MR. A.B.MUNSHI, ADVOCATE
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and
MR.M.M.TIRMIZI, ADVOCATE with
MR.SAHIL SHAH, ADVOCATE for their respective petitioners
MR.MITESH AMIN, PUBLIC PROSECUTOR with
MS. MOKSHA THAKKAR, A.P.P.for Respondent No. 1
MR.I.H.SAIYED, ADVOCATE with
MR.HARDIK A DAVE, ADVOCATE for the Respondent No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 17/02/2017
ORAL JUDGMENT
1. From amongst this group of matters, some are filed seeking to quash different First Information Reports ('FIRs' for short) registered as I-C.R.No.31 of 2013 to I-C.R.No.34 of 2013 with Surat DCB Police Station by invoking inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 ('the Code' for short) and the other to quash M.Case No.1 of 2015 registered with Athwa Lines Police Station, Surat by invoking the powers of this Court under Article 226 of the Constitution of India read with Section 482 of the Code. The M.Case No.1 of 2015 was registered based on the order made by learned Judicial Magistrate First Class, Surat under Section 156(3) of the Code in private complaint.
2. Since the allegations in the FIRs as also in the complaint concern the public charitable trust named " The Surat Islamic Yatim Khana Society Trust" ('the trust', for short), the petitions were taken up for hearing together for final disposal.
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3. For the sake of convenience, the petitions are considered in two different groups. The first group would consist of the matters where the FIRs being I-C.R.No.31 of 2013 to I- C.R.No.34 of 2013 are sought to be quashed. The second group would consist of the matters where the complaint being M.Case No.1 of 2015 is sought to be quashed.
4. In second group of the petitions, since one of the common grounds urged is that the FIR registered as M.Case No.1 of 2015 is a second FIR for the same offence, for which the FIRs being I-C.R.No.31 to 34 of 2013 are registered, the Court would consider the submissions of learned advocates appearing for the parties and reason its conclusion in the first group of matters first.
5. The petitions which fall in first group are Criminal Miscellaneous Application Nos.2402 of 2014 to 2403 of 2014, Criminal Miscellaneous Application No.20928 of 2014, Criminal Miscellaneous Application No.20945 of 2014, Criminal Miscellaneous Application No.20947 of 2014, Criminal Miscellaneous Application No.20446 of 2013,Criminal Miscellaneous Application No.20449 of 2013,Criminal Miscellaneous Application No.462 of 2014,Criminal Miscellaneous Application No.1217 of 2014,Criminal Miscellaneous Application No.18388 of 2013,Criminal Miscellaneous Application No.18389 of 2013,Criminal Miscellaneous Application No.18390 of 2013, Criminal Miscellaneous Application No.18391 of 2013,Criminal Miscellaneous Application No.18690 of 2013 and Criminal Miscellaneous Application No.18691 of 2013.
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6. Criminal Miscellaneous Application Nos.20446 of 2014 to Criminal Miscellaneous Application Nos.20449 of 2014 are filed by the then President of the Trust seeking to quash FIR being I- C.R.Nos.31, 32, 33 and 34 of 2013 respectively. Likewise, Criminal Miscellaneous Application Nos.18388 of 2013 to Criminal Miscellaneous Application No.18391 of 2013 are filed by the then Secretary of the Trust seeking to quash FIR being I- C.R.No.31, 32, 33 and 34 of 2013 respectively. The other petitions are filed seeking to quash FIR individually from the above said four different FIRs.
7. All the four FIRs are lodged by same person named Kasim Yunush Bham - the respondent No.2 in above referred petitions. The gist of the allegations in FIR being I-C.R.No.31 of 2013 is that the Surat Islamic Yatim Khana Society Trust is an old trust doing charity work of keeping Orphanage Home for about 225 to 250 children and the informant is the lifetime member and was also appointed as member of the fact finding committee called as Lavad Committee which was to inquire into financial irregularities, that on inquiry it was found that to misappropriate the funds of the trust by pre-planned conspiracy the President and officer bearers transferred huge funds of the trust in name of bogus persons by making false documents of sale for somebody's lands at Lajpor Village and caused financial loss to the trust and obtained personal financial gain.
8. The gist of the allegations in other FIRs being I-C.R.No.32, 33 and 34 of 2013 is almost the same like the first FIR being I- C.R.No.31 of 2013.
9. Learned senior advocate Mr.Mihir Joshi appearing with Page 5 of 60 HC-NIC Page 5 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT learned advocate Mr.Keyur Gandhi for Nanavati Associates for the petitioner, in petitions being Criminal Miscellaneous Application No.20446 to 20449 of 2013, who first addressed the Court made following submissions:
That the allegations in the FIRs do not make out any of the offences against the petitioner and they do not satisfy the ingredients of the offences alleged.
That the original owners of the lands have not filed any complaint of forgery. That in absence of any specific allegations in the FIR against the petitioner for commission of offences alleged, he can not be held vicariously liable for offences alleged to have been committed in the matter of purchase of lands for the trust simply because he was the President of the Trust.
That the allegations in the FIR are general and vague and based on general and vague allegations, no inference could be drawn as regards the involvement of the petitioner in the alleged conspiracy for misappropriation of funds of the trust.
That the allegations of misappropriation and criminal breach of trust are to be specific and not in general and therefore, based on general allegations the petitioner can not be permitted to be prosecuted for criminal offences. That the collective decision was taken through the resolutions in the meetings of the Trustees to purchase 100 vighas of land for the education project / activities and pursuant to such decision, the transactions for the land were entered into in the year 2006, however the FIRs came to be lodged after much delay in the year 2013 and for delay of about seven years in lodging Page 6 of 60 HC-NIC Page 6 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT the FIR no explanation is given by the informant and in absence of any explanation, if the petitioner is permitted to be prosecuted for criminal offences, it will be an abuse of process of the Court. That though the charge sheet against the petitioner is not filed, however, the investigation in connection with the FIRs was carried out and during the investigation it is nowhere found that the petitioner had gained any monitory benefits from the transaction for purchase of the lands.
That the petitioner is not alleged to have played any role in the matter of fabricating false documents of sale and therefore the petitioner could not be said to be involved in alleged offences of misappropriating the funds of the Trust.
10. Mr.Buch, learned advocate appearing for the petitioner of Criminal Miscellaneous Application Nos.2402 and 2403 of 2014 as also appearing for Ms.Nimisha Parekh, learned advocate for the petitioner of Criminal Miscellaneous Application No.20928 of 2014, Criminal Miscellaneous Application No.20945 of 2014 with Criminal Miscellaneous Application No.20948 of 2014 submitted, while adopting arguments advanced by learned senior advocate Mr.Joshi, that the petitioners just worked as brokers to find out and purchase the lands for the trust for its education purposes. Mr.Buch submitted that based on the instructions given the agreements were entered to purchase the lands for the trust. Mr.Buch submitted that the petitioners are not involved in making any false document, however since the transactions are disputed, the petitioners are agreeable to return / deposit amount if reasonable time is given to them without prejudice their rights and contentions. Mr.Buch submitted that since the trust is to get back the amounts for its Page 7 of 60 HC-NIC Page 7 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT charitable purpose, the Court may exercise its inherent powers and quash the FIRs to secure the ends of justice.
11. Mr.Chetan Pandya, learned advocate appearing in Criminal Miscellaneous Application No.462 of 2014 submitted that neither in the FIRs the petitioner is alleged to have misappropriated the funds of the Trust, nor has indulged in any act for making false documents in connection with the lands for which the offence of forgery is alleged. Mr.Pandya submitted that the allegations in the FIRs would not disclose any offence against the petitioner and therefore prosecuting the petitioner for the FIRs would be nothing but an abuse of the process of the Court. Mr.Pandya submitted that what is stated to have been found during the investigation is that the petitioner has signed as a witness to the sale-deed and the Power of Attorney used for making sale-deed. Mr.Pandya submitted that the petitioner has signed as a witness to the signature of the donee of the Power of Attorney for accepting the Power of Attorney and it is not the case that the petitioner had ever stood as a witness to the alleged forged signature of the original owner. Mr.Pandya submitted that it is nobody's case that the signature of the donee of power of attorney was forged. Mr.Pandya submitted that signing below the signature of donee would not ipso facto be a ground to say that the petitioner has committed offence of forgery for the lands of others. Mr.Pandya, therefore, submitted that even as per the material collected by the police since no offence could be said to have been committed by the petitioner, the Court may exercise its inherent powers under Section 482 of the Code to prevent the abuse of the process of the Court against the petitioner.
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12. Mr.Shakeel Qureshi, learned advocate appearing in
Criminal Miscellaneous Application No.1217 of 2014 submitted that the petitioner is not alleged to have played any role in the matter of making false documents to show the purchase of lands for the Trust to misappropriate the funds of the Trust. He submitted that the allegations in the FIRs as also the material collected during the investigation would not constitute any of the offences alleged in the FIRs against the petitioner. Mr.Qureshi submitted that except signing as a witness to identify the signature of the Secretary of the trust in whose favour the sale deed was made, the petitioner has not indulged into any other act. Mr.Qureshi submitted that putting signature below the signature of the purchaser is not an offence either of misappropriation or of criminal breach of trust or of making false document. Mr.Qureshi submitted that considering the limited role alleged to have been played by the petitioner, which in no circumstances, would amount to commission of any of the offences as alleged, if criminal prosecution is allowed to continue against him, it would be an abuse of process of the Court and therefore the Court may exercise its inherent powers and quash the FIRs insofar as the applicant is concerned.
13. Mr.N.D.Nanavati, learned senior advocate appearing with Mr.Hardik Jani, learned advocate appearing for the petitioner of Criminal Miscellaneous Application No.18388 to 18391 of 2013 submitted that the petitioner was the Secretary of the Trust at the relevant time and by collective decisions of the Trustees in the meeting through the resolutions, the petitioner was authorised to take appropriate requisite steps for purchase of Page 9 of 60 HC-NIC Page 9 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT 100 vighas of lands for the trust for the purpose of educational activities. Mr.Nanavti submitted that since in principle the decision was already taken by the trust to purchase such a vast land, if some money, in advance, were paid for entering into transactions for lands, that by itself would not make out offence of conspiracy to misappropriate the funds of the trust. Mr.Nanavati submitted that the allegations in the FIRs are vague and general in nature and it is not specifically alleged as to how and with what dishonest intention the petitioners acted to misappropriate the trust's funds. Mr.Nanavati submitted that none of the ingredients of Sections 24, 34, 405, 415, 463 read with Section 120B of the Indian Penal Code could be said to have been satisfied even if the allegations in the FIRs are taken as they are. Mr.Nanavati submitted that Section 23 of the Indian Trust Act as also Sections 50 and 51 of the Bombay Public Trust Act provide for remedies in case irregularities are found to have been committed for the public trust property and filing of the FIRs without specifying any criminal intent is nothing but a clear case of abuse of the process of the Court. Mr.Nanavati also submitted that not only the dishonest intention is not alleged in connection with purchase of lands for the trust, but the petitioner is not alleged to have gained any monitory benefits in connection with the transactions for the purchase of the lands for the trust. Mr.Nanavati submitted that while maintaining that there was no dishonest intention to use the trust's funds, the petitioner volunteers to deposit the amount with other petitioners is some reasonable time is given, to see that the trust may not suffer any financial loss and such deposit would without prejudice to his rights and contentions. Mr.Nanavati submitted that since the petitioner as well as other petitioners - brokers volunteer to deposit the Page 10 of 60 HC-NIC Page 10 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT amount, which could be utilised by the trust for the charitable purposes, the Court may exercise its inherent powers and quash the FIRs to secure the ends of justice.
14. Mr.Arpit Kapadia, learned advocate appearing in Criminal Miscellaneous Application No.18690 of 2013 and Criminal Miscellaneous Application No.18691 of 2013 submitted, while adopting the arguments advanced by learned senior advocates, that since the petitioner is not alleged to have played any role in using the funds of the trust for the purchase of lands, there is no question of committing any offence of either misappropriation or criminal breach of trust with the trust and therefore allowing the criminal proceedings to continue against the petitioner will amount to abuse of process of the Court and will cause lot of harassment to the petitioner and therefore the Court may exercise its inherent powers and quash the FIRs insofar as the present petitioner is concerned.
15. The Court having heard learned advocates for the petitioners, when inquired with Mr.Mitesh Amin, learned Public Prosecutor as to whether the investigation in connection with the FIRs are carried out, Mr.Amin stated that the investigation has been done and the charge-sheet is also filed against some of the accused who are not before the Court, however charge- sheet is not filed against the petitioners as their petitions have been pending.
Mr.Amin, learned Public Prosecutor appearing with learned Additional Public Prosecutor Ms.Moksha Thakkar submitted that it is in connection with the funds of the public charitable trust the FIRs are lodged alleging making of false documents to misappropriate the funds of the trust by Page 11 of 60 HC-NIC Page 11 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT transferring the funds of the trust in the name of bogus persons. Mr.Amin submitted that in connection with the allegations made in the FIRs, what has surfaced during the investigation by now is that by forging the bogus Power of Attorney and making false documents of sale, sombody's lands were shown to have been purchased for the trust and large amounts of trusts were paid in advance and against the payment of more than the value of the lands, the trust has not yet acquired any right, title or interest in any land. Mr.Amin submitted that the allegations in the FIRs do disclose the commission of offences alleged and it is not required that in every FIR exact words of the provisions under which the offences are alleged should have been used. Mr.Amin submitted that when the allegations are for misappropriation of funds of public charitable trust, and during the investigation if the material is collected showing involvement of the accused in offences alleged, the Court would allow the prosecution to continue against such accused.
Mr.Amin, learned Public Prosecutor submitted that it is not possible to believe that either the President or other trustees, who are the accused, had no knowledge about the use of huge amount of the trust for so-called purchase of the lands for the trust. He submitted that amount around Rs.4.37 crores were released from the trust's funds and out of this total amount, more than Rs.1.22 crores were just paid before even the so-called decision was taken to authorise the Secretary to spend money for purchase of lands. Mr.Amin submitted that even before passing of the resolutions deciding to purchase the lands and to authorise the Secretary to spend the amount of the trust, huge amounts were paid to the brokers.
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Mr.Amin, learned Public Prosecutor submitted that when the Secretary was allowed to spend the money of the trust for purchase of the lands and when different amounts were actually paid for purchase of lands for the trust, it is not possible to believe that the President and other trustees, who were parties to the resolutions, would not examine or take any interest to find out the genuineness of the transaction. Mr.Amin submitted that even as on today the Trust has not been able to get the title over the lands for which the money were allowed to be spent. Mr.Amin submitted that during the investigation the police has recorded statements of different witnesses and also collected material wherefrom it, prima facie, appears that there was conspiracy to misappropriate the funds of the trust by falsely entering into the transactions for somebody's lands and when in the nature of allegations the investigation against the petitioners is to be made, the Court may not exercise its inherent powers under Section 482 of the Code.
16. Mr.I.H.Saiyed, learned advocate appearing with Mr.Hardik Dave, learned advocate for the informant submitted that there are clear allegations in the FIRs as regards misappropriation of funds of the trust by making false documents to show the purchase of the lands in the name of the trust. Mr.Saiyed submitted that it was a well designed conspiracy to misappropriate the funds by transferring the funds in the name of bogus persons who were not the owners of the lands. Mr.Saiyed submitted that till today no title in any land is acquired by the trust. Mr.Saiyed submitted that as a part of conspiracy huge money of the trust were paid to the brokers in Page 13 of 60 HC-NIC Page 13 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT advance and the trust is yet to get any land and such was the intention from the very beginning. Mr.Saiyed submitted that it was only somewhere in the year 2013 when in the meeting of the trust hue and cry was raised for spending huge funds of the trust, the Fact Finding Committee was appointed and the Fact Finding Committee having met various persons and visited various places found that the money of the trust was allowed to be misappropriated by showing bogus persons as the owners of the land and then the FIRs came to be lodged and therefore it cannot be said that there was any delay in lodging the FIRs. Mr.Saiyed submitted that the FIR is not lodged with any mala fide intention but the informant having come to know that by preparing false and bogus documents the trust money were spent, the FIRs were lodged clearly alleging that financial loss has occurred to the trust and the accused have personally gained from the trust amount. Mr.Saiyed submitted that the allegations in the FIRs do constitute the offences alleged and in connection with the allegations in the FIRs when the charge sheet is filed against other accused and when investigation is required against the present petitioners, the Court may not exercise its inherent powers under Section 482 of the Code in favour of the petitioners.
17. The Court on perusal of the FIRs finds that it is specifically alleged that to misappropriate the funds of the trust, the accused including the President and the Secretary hatched conspiracy and transferred the funds of the trust in the name of bogus persons by making false documents whereby financial loss was caused to the trust and personal financial gain was obtained. The FIR is not to be treated as Page 14 of 60 HC-NIC Page 14 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT encyclopedia so as to give minute details concerning the happening of the events. When the allegations are of causing huge financial loss to the charitable trust, the investigation is required and during the investigation if some material is collected connecting the accused with the allegations made in the FIR, the prosecution of the accused is to be allowed. The powers under Section 482 of the Code are not to be routinely exercised but to be sparingly exercised when the allegations in FIR do not disclose the offence or that the allegations made in the FIR if taken on their face value would not satisfy the ingredients of the offences alleged or when the FIR is lodged with oblique motive or purpose just to wreck vengeance against the accused.
18. Learned senior advocate Mr.Joshi would, however, rely on following authorities.
In the case of S.W.Palanitkar and ors. vs. State of Bihar and another reported in 2002 (1) SCC 241, Honourable the Supreme Court has observed in paragraphs - 8 and 18 as under:
"8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
18. Cautioning against issuing of process so Page 15 of 60 HC-NIC Page 15 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT that it should not be an instru ment in the hands of the private complainant as vendetta to harass the person needlessly, this Court in Punjab National Bank & Ors. v. Surendra Prasad Sinha, [1993] Supp. (1) SCC 499 has this to say in para 6 : "6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint "against the appellants without any prima facie case to harass them from vendetta."
In the case of Gorige Pentaiah vs. State of Andhra Pradesh reported in 2008 (12) SCC 531, Honourable the Supreme Court has observed in paragraphs - 6, 7 and 25 as under:
Page 16 of 60HC-NIC Page 16 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT "6. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.
7. Similarly, we find that the ingredients of Section 506 of the Indian Penal Code are totally absent in the complaint. In the complaint it is not even mentioned that the accused had intimidated or threatened the complainant or any one else. In absence of basic ingredients of the section in the complaint, no case under section 506 IPC can be sustained. Section 506 reads as under:
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
25. The question before us is whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal (supra)? Is it a case where the allegations made in the Page 17 of 60 HC-NIC Page 17 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120B IPC? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint.
In the case of Union of India vs. Major J.S.Khanna reported in 1972 (3) SCC 873, Honourable the Supreme Court has observed in paragraph - 22 as under:
"22. It is true that at the stage when the Special Judge drew up charges and decided to proceed with the case on the footing of a conspiracy to defraud the Government, he had only to see that there was a prima facie case against the two respondents. That could also be the basis upon which the High Court had to try upon two revision applications. Even so, there had tobe some material before the Special Judge which could point towards a conspiracy in which the two respondents had joined. Such of the statements which the investigating officer could procure did not, as the High Court observed, point to such a conspiracy. What appears to have been lost sight of by the Special Judge was the fact that the period during which the orders in question were placed was an emergency period, when procedure laid down for such orders could not perhaps be strictly adhered to. He also appears to have lost sight of the fact that out of the thirteen orders in question, four of the value of Rs.32,000/were placed by Brig. Mani, and orders only for the balance of Rs.8,000/ and odd were placed by Res.Khanna. It may be that someone had played fraud in the matter of quotations in the name of Darrang Transport, United Motor Works, Auto Stores etc. But unless there was some material at least to link these two officers with the Page 18 of 60 HC-NIC Page 18 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT person who tendered those quotations, it is difficult to say that there were conspirators who had joined with the rest of the accused to defraud the Government. In these circumstances, we find ourselves unable to agree with the contention of Mr.Mukherjee that the High Court was in error in coming to the conclusion that no prima facie case had been made out against either of the two officers."
In the case of Chunduru Siva Ram Krishna vs. Peddi Ravindra Babu reported in 2009 (11) SCC 203, Honourable the Supreme Court has observed in paragraphs - 28 to 32 as under:
"28. However, the most famous case on the subject, decided by this Court, was the case of State of Haryana & Ors. v. Bhajan Lal, 1991(1) RCR(Crl.) 383 : [1992 Suppl. (1) SCC 335], wherein this Court laid down the law as to when the High Court acting under the provisions of Section 482 Criminal Procedure Code should and would exercise the inherent power in so far as quashing of criminal proceedings are concerned. In the said decision this Court categorized the cases by way of illustration wherein such power should be exercised either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It observed in para 102 as follows : "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be Page 19 of 60 HC-NIC Page 19 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT 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 inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.
(3) 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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in Page 20 of 60 HC-NIC Page 20 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT 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.
(6) 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. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
29. The above decision was followed by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR(Criminal) 761 :
[1998(5) SCC 749]. In paragraph 28 of the said judgment this Court held thus :
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the Page 21 of 60 HC-NIC Page 21 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
30. Further, this Court observed in S.W. Palanikar v. State of Bihar, 2001(4) RCR(Criminal) 572 : [2002(1) SCC 241] that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. It observed as follows : "
8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil Court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
9. The ingredients in order to constitute a criminal breach of trust are : (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) Page 22 of 60 HC-NIC Page 22 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged,
(ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v. State of Bihar, 2000(2) RCR(Criminal) 484 : (2000)4 SCC 168, on facts of that case, has expressed thus : "In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one.
It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the Page 23 of 60 HC-NIC Page 23 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." (emphasis supplied)
31. The aforesaid discussion clearly pinpoint the legal position on the subject which is by now well settled. The principle that could be culled out is that when at an initial stage a prosecution is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. It is also for the Court to take into consideration any special feature that may appear in a particular case while considering whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose. The tests that are laid down in the case of Bhajan Lal (supra) are required to be applied very carefully and minutely when a prayer for quashing is laid before the Court.
32. When the facts of the present case are tested in the backdrop of the aforesaid legal position, the position that emerge is as to whether or not in the report submitted with the Station House Officer, Kakumanu Police Station in Kakumanu Mandal, District Guntur on 02.07.2005 and the charge sheet which was filed by the Station House Officer, whether there is any substantial allegation against the appellants which would prima facie establish the offence alleged against the appellants. While examining the said aspect this Court is required to keep in mind the allegations made in the aforesaid report and in the charge sheet which must be considered Page 24 of 60 HC-NIC Page 24 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT uncontroverted."
In the case of Central Bureau of Investigation, Hyderabad vs. K.Narayana Rao reported in 2012 (9) SCC 512, Honourable the Supreme Court has observed in paragraphs - 24 to 26 as under:
"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
25. In the earlier part of our order, first we have noted that the respondent was not named in the FIR and then we extracted the relevant portions from the chargesheet about his alleged role. Though statements of several Page 25 of 60 HC-NIC Page 25 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT witnesses have been enclosed along with the chargesheet, they speak volumes about others. However, there is no specific reference to the role of the present respondent along with the main conspirators.
26. The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge sheet and the materials placed for his scrutiny and arrived at a conclusion that the same does not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A1 to A3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offence punishable under Section 420 read with Section 109 of IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether any prima facie material available against the person who has charged with an offence under Section 420 read with Section 109 of IPC."
In the case of Manoj Kumar Sharma vs. State of Chhattisgarh reported in 2016 (9) SCC 1, Honourable the Supreme Court has observed in paragraphs - 29 to 33 as under:
"29) In the case on hand, after 5 (five) years of the closing of the above case under Section 174 of the Code, a fresh FIR being No. 194 of 2005 was registered on the basis of anonymous letters received by Respondent No. 2 herein brother of the deceased at Durg under Sections 304B, 498A 20 and Section 34 of the Page 26 of 60 HC-NIC Page 26 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT Code stating that the death of Nandini Sharma was a preplanned murder. Even after the death of Nandini, the relations between the appellant No. 1 herein and his inlaws were cordial as can easily be seen from the evidence on record. Appellant No. 1 herein met his inlaws several times at Durg. Neither at the time of the death of Nandini nor before receiving of anonymous letters by Respondent No. 2 herein, was there any iota of doubt in the minds of the respondents with regard to the appellants herein. Even the father of the deceased never raised suspicion on the conduct of his soninlaw and only after receiving of the above said letters by Respondent No. 2, after a lapse of 5 (five) years, he gave his deposition that his daughter was subjected to cruelty for the demand of dowry on the hands of the appellants herein.
30) Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion, such extraordinary 21 delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by Respondent No. 2 herein against the appellants, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, Respondent No. 2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore, in the interest of justice, the FIR deserves to be quashed. In this context, it is apt to quote the following decision of this Court in Jai Prakash Singh vs. State of Bihar & Anr. (2012) 4 SCC 379 wherein it was held as under: "12. The FIR in a criminal case is a vital Page 27 of 60 HC-NIC Page 27 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."
31) Whether an offence has been disclosed or not, must necessarily depends on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence.
32) In the above backdrop, it is also imperative to discuss the scope of inherent power of the High Court under Section 482 of the Code. The appellants before us filed a petition under Section 482 of the Code for quashing of the FIR on the ground that the FIR was filed after a delay of 5 (five) years and is barred by territorial jurisdiction. The High Court, on the other hand, after taking note of the fact that the investigation is in the final stage in the matter and a charge sheet is ready to be filed before the Judicial Page 28 of 60 HC-NIC Page 28 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT Magistrate First Class, ordered for its continuance without taking into consideration that it is barred by law. The court at Durg did not take notice of the fact that there is a legal bar engrafted in the matter for its continuance and the proceedings have been maliciously instituted after a delay of five years with an ulterior motive for wreaking vengeance on the appellants.
33) This point has been more clarified in State of Haryana and Others vs. Bhajan Lal and Others (1992) Supp (1) SCC 335, wherein this Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon Page 29 of 60 HC-NIC Page 29 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice."
19. On the aspect of delay, learned senior advocate Mr.Nanavati has also relied on the decision in the case of Kishan Singh (dead.) Through Lrs. vs. Gurpal Singh reported in 2010 (8) SCC 775 wherein Honourable the Supreme Court has observed in paras: 21 and 22 as under:
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal.
22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the Page 30 of 60 HC-NIC Page 30 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."
20. On the other hand, Mr.Saiyed, learned advocate has relied on following two authorities.
In the case of N. Soundaram vs. P.K.Pounraj reported in 2014 (10) SCC 616, Honourable the Supreme Court has observed in paragraphs - 13 to 15 as under:
"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 ]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its powers under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1]. An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora, (2013) 10 SCC 581].
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14. An overall perusal of the materials placed before us makes out a prima facie case against the accused which requires to be decided by conducting a proper trial. At this stage the High Court cannot analyse and meticulously consider the evidence and anticipate whether it will end up in conviction or acquittal. This is not the stage to decide whether there is any truth in the allegations made but to form an opinion whether on the basis of the allegation a cognizable offence or offences alleged has been prima facie made out. The guilt or otherwise of the accused can be proved only after conducting a fullfledged trial. In the circumstances, in our opinion, it is not proper for the High Court to interfere with the proceedings and quash the final report submitted by the police.
15. On the other hand we do not thing that the High Court was right in opining that the dispute between the parties is civil in nature. This is a case where serious allegations were made against the accused party. Just because the allegations involve the factum of recovery of money it cannot be concluded that the complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions. In our considered opinion the High Court seriously misdirected itself in coming to a conclusion that it is for the competent civil court to decide the said appeal. We are unable to agree with the view taken by the learned Single Judge of the High Court. In our opinion, in the background and circumstances of this case the High Court should not have exercised the power under Section 482 CrPC which resulted in miscarriage of justice."
In the case of International Advanced Research Center for Powder Metallurgy and New Materials (ARCI) Page 32 of 60 HC-NIC Page 32 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT reported in 2016 (1) SCC 348, Honourable the Supreme Court has observed in paragraphs - 13 and 25 as under:
"13. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court, is as to whether uncontroverted allegations as made in the complaint estbalish the offence. The High Court being superior court of the State should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 CrPC should not be exercised to stifle a legitimate prosecution. The power under Section 482 CrPC is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon the facts and circumstances of each case. (Vide State of Haryana v. Bhajan Lal, State of T.N. v. Thirukkural Perumal and CBI v. Ravi Shankar Srivastava.) ... ... xxx
25. The above decisions reiterate the well settled principles that while exercising inherent jurisdiction under Section 482 CrPC, it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. The High Court's inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the Court would be justified in quashing the proceedings in the interest of justice."Page 33 of 60
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21. As per the principles of law laid down for exercise of inherent powers under Section 482 of the Code, the Court may be justified in exercising such powers where the Court finds that the allegations in the FIR do not disclose any offence, or where the allegations are so absurd or inherently improbable to reach to the conclusion that there is sufficient ground for proceedings against the accused or whether there is a legal bar in the provision of any statute to proceed against the accused or where the criminal proceedings appear to be mala- fide instituted with an ulterior motive of wrecking benefits against the accused or with a view to spite him due to private or personal grudge. But a note of caution is given to exercise powers very sparingly and with circumspection and that too in the rarest of rare cases. The caution is also to the effect that the Court would not be justified in embarking upon any inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.
As observed in Manoj Kumar Sharma (supra), whether an offence has been disclosed or not must necessarily depends upon facts and circumstances of each case. If on consideration of relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into offences and will generally allow the investigation into offences to be completed in order to collect material for proving the offence.
22. As pointed out by learned Public Prosecutor Mr.Amin, during the investigation following implicating materials have surfaced.
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(i) False documents of sale in the name of the Secretary of the Trust - the accused Mohmmad Khalidhusen Hakim are made by allegedly bogus persons who were never the owners of the land and also by using forged Power of Attorney,
(ii)Statements of the heirs or relatives of original owners of the land reveal that the documents for sale were made in the name of persons resided in foreign country and died there and some are still residing there,
(iii) Statements of witnesses reveal that forged Power of Attorney was made and by use of forged Power of Attorney sale-deeds were executed,
(iv) Statement of co-accused - Faruk Ibrahim Kola who stated that he worked as broker and against whom charge-sheet is filed reveals that the President, Secretary and the persons connected with the trust visited his house and the Secretary asked him to say that the land was sold at Rs.9 lakhs per Bigha if anybody inquired in that regard,
(v)Statement of co-accused Balubhai - the petitioner in two different petitions who stated that he worked as broker, reveals that he had gone to the office of the President where Secretary - Anis Hakim Salim Sopariwala and other 3-4 members were present where price of land was fixed at Rs.9/- lakhs per Bigha as per which Soda-Chitthi(agreement to get Page 35 of 60 HC-NIC Page 35 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT sale done) was executed on 05.04.2006 at the office of the Trust and he received Rs.2,90,03,900/- till 24.11.2006,
(vi) Statement of Ahmed Musa Patel reveals that he executed the document of sale as heir of the original owner on accused Faruk Kola and other three persons promising him to give money on his signing the document and he was then paid Rs.13,50,000/-. He further stated that he was taken to the office of the Sub-Registrar where the Secretary accused Anish Hakim had also come. He has further revealed that though consideration is shown to have been paid by cheque for Rs.2,68,000/- but he was never given the cheque. He also stated about his visiting in the trust office.
23. There are other statements recorded as regards the making of forged Power of Attorney in the name of accused Dineshbhai Parsottambhai Patel - the petitioner of the first two petitions where the accused Hamid Abdul Latif - the petitioner of the last two petitions is alleged to have played role for making the forged documents and the accused Balubhai also involves the accused Hamid Abdul Latif.
24. The above material prima facie shows that the funds of the trust were utilized in the name of persons who were never the owners of the land by making false sale-deed in their names. Therefore, not only the offence of forgery is disclosed but such offence of forgery was with dishonest intention to misappropriate the funds of the trust is also disclosed.
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As regards the contention about delay in lodging the FIRs, it is required to note that as stated in the statement dated 14.06.2014 of one Mohmmadrazi Istiyak Ahmad Mirza, a copy whereof is placed with Criminal Miscellaneous Application No.20446 of 2013, it was after the hue and cry raised in the meeting dated 31.03.2013, a Fact Finding Committee was appointed and the Fact Finding Committee, after visiting various places and meeting various persons, when found that funds of the trust were used by making false documents of sale, the FIRs came to be lodged. Therefore in such circumstances, simply on the ground of delay the FIRs are not required to be quashed in exercising inherent powers under Section 482 of the Code.
25. Learned Senior Advocate Mr.Joshi however submitted that for the purchase of 100 Bighas of land, a decision was taken in the meeting of the trustees and for such purpose resolutions were also passed and with bona-fide intention necessary steps were taken to purchase the lands for the education purposes. However, what appears from the material collected is that even before the decision was taken, the large amount in cash and some through bearer cheques were given to the broker. Thus, from the allegations in the FIRs, the statements of various persons revealing utilisation of funds of the trust by making false documents of sale, it can be said that offences alleged are disclosed. The Court finds that though submission in Criminal Miscellaneous Application No.462 of 2014 is that the petitioner has simply identified the signature of the donee of the power of attorney, however, during the course of hearing of the said petition, learned advocate Mr.Saiyed had shown xerox copies of some cheques drawn in Page 37 of 60 HC-NIC Page 37 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT favour of the petitioner by office bearers of the trust. Therefore in what way the complicity of the petitioner in the offences alleged is there is to be found out by the Investigating Agency. Thus, in this petition at this stage inherent powers under Section 482 of the Code are not required to be exercised.
26. However, so far as the petitioner of Criminal Miscellaneous Application No.1217 of 2014 is concerned, it could not be disputed that during the investigation, the only role alleged to have been played by her is of identifying the signature of the Secretary of the Trust in whose favour the sale deed was made. She is not alleged to have played any specific role in either making of false document or in any way connected with the Trust. It is not the case that signature identified by her on the sale deed was not of the Secretary of the Trust. Thus, if the only role which could be attributed was of identifying the signature of the Secretary of the Trust who was shown to be the purchaser of the land for the trust, the allegations in the FIR with the material collected during the investigation would not constitute any of the offences alleged against the petitioner. Therefore, in case of this petition, inherent powers under Section 482 of the Code are required to be exercised to prevent the abuse of the process of the Court against her and therefore her petition is required to be allowed. Except this petition, the other petitions in the first group do not deserve acceptance and accordingly they are required to be rejected.
SECOND GROUP OF PETITIONS:-
27. The petitions which fall in second group are Criminal Page 38 of 60 HC-NIC Page 38 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT Miscellaneous Application No.24146 of 2015, Special Criminal Application No.7520 of 2015 and Special Criminal Application No.7366 of 2015.
28. Special Criminal Application No.7386 of 2015 and of Criminal Miscellaneous Application No.24146 of 2015 are filed by the President and Secretary of the Trust respectively. The petitioners of Special Criminal Application No.7520 of 2015 are the Ex-Vice President, Ex-Joint Secretary and Ex-Joint Secretary respectively.
29. The M.Case No.1 of 2015 came to be registered as FIR pursuant to the order made by learned Magistrate under Section 156(3) of the Code on the private complaint filed by the present Joint Secretary of the Trust one Shri Mohmmad Naved Abdulrazak Sheikh in the Court of learned Magistrate which is registered as Criminal Miscellaneous Inquiry No.780 of 2014. It is alleged in the complaint that, the complainant had given complaint to the Police Commissioner against the petitioners of these three petitions and other persons as may be found involved in the offences under Sections 420, 465, 467, 468, 471 with 114, 34 and 120B of the Indian Penal Code. It is stated that he was called by Police Sub Inspector of Nanpura Police Station who recorded his statement but had done nothing thereafter. It is alleged that in the meeting of 22.12.2013, one member demanded taking of action for unauthorisedly opening bank account with Union Bank of India and even the Chartered Accountant of the Trust found during audit that the bank account was not shown in the accounts of the Trust and no audit was done of such account. It was therefore resolved to take action against concerned Page 39 of 60 HC-NIC Page 39 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT responsible persons. It was then on inquiry found that on 22.09.2005 bank account bearing No.311001010055136 was opened with the Union Bank of India without any decision in the meeting of the Trust and the bank account was operated by the accused. It is alleged that in the said accounts financial transaction of crores of rupees took place and such transactions were never shown in the account of the trust.
30. It appears that learned Magistrate called for the report from the Police Commissioner, who in his report stated that in connection with the application of the complainant, investigation was done and it was found that the bank account with the Union Bank of India was opened without any decision of the trust, that no audit of the transaction took place or done and the bank account was opened without the permission of the Charity Commissioner and that huge money transactions took place in the bank account, however, in connection with the application, no FIR was registered. Learned Magistrate therefore passed an order under Section 156(3) of the Code on 02.12.2015 to register the FIR and to make report of the investigation.
31. Learned Senior Advocate Mr.Marshall appearing with learned advocate Mr.Munshi in Special Criminal Application No.7386 of 2015 filed by the President submitted that M.Case No.1 of 2015 is the second FIR in connection with the same offence for which above referred FIRs are registered where the investigation has also covered the transaction in the bank account of Union Bank of India. Mr.Marshall submitted that second FIR is double jeopardy and would be violative of Article 22(2) of the Constitution of India. Mr.Marshall submitted that Page 40 of 60 HC-NIC Page 40 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT by second FIR the complainant has abused the process of law as he knew that first four FIRs were already registered alleging use of the trust money for purchase of the land from the bank account of Union Bank of India. Mr.Marshall submitted that since the second FIR is barred as per the settled principles of law, such second FIR is required to be quashed in exercise of powers under Section 226 of the Constitution read with powers conferred under Section 482 of the Code to prevent the abuse of the process of the Court. Mr.Marshall submitted that since the investigation concerning the use of the bank account with the Union Bank of India is also done while investigating the first four FIRs, petitioner could not be subjected to second investigation for the same offence. Mr.Marshall submitted that even otherwise the allegations in the second FIR are general and vague in nature and would not constitute any of the offences alleged against the petitioner and in absence of specific allegations against the petitioners as to how the petitioners have committed offences alleged, the criminal prosecution should not be allowed against them. Mr.Marshall has relied on a decision in the case of Anju Chaudhary vs. State of Uttar Pradesh reported in (2013) 6 SCC 384 and a decision in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation reported in (2013) 6 SCC 348 in support of his arguments.
32. Learned Advocate Mr.Tirmizi appearing with Mr.Shah in Special Criminal Application No.7520 of 2015 submitted, while adopting the argument of learned senior advocate Mr.Marshall that when the second FIR is not permissible for the same offence, the Court should exercise its inherent powers to prevent the abuse of the process of the Court. Mr.Tirmizi Page 41 of 60 HC-NIC Page 41 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT submitted that the complainant though was aware about the investigation being carried out in connection with the first four FIRs still by suppressing such material fact, filed private complaint before the learned Magistrate. Mr.Tirmizi submitted that there are no specific allegations against the petitioners as to how they made personal use of the amounts deposited in the bank account of the Union Bank of India and therefore in connection with vague and general allegations, the learned Magistrate ought not to have ordered lodging of second FIR.
33. Learned Advocate Mr.Jani appearing in Criminal Miscellaneous Application No.24146 of 2015 submitted that criminal machinery is put into motion against the petitioners through the process under Section 156(3) of the Code without first resorting to the provisions of Section 154(1) and (2) of the Code. Mr.Jani submitted that unless an application prior in point of time is made under Section 154 before the concerned police station, the police investigation straight way under Section 156(3) of the Code could not be ordered. Mr.Jani submitted that the complainant knew about the investigation being done in first Four FIRs and therefore deliberately he has not filed affidavit in the private complaint which would show that there was material suppression by the complainant. Mr.Jani submitted that as per the report of the investigation in connection with earlier FIRs submitted before the learned Magistrate, the investigation has covered the allegations in the private complaint and therefore learned Magistrate was not justified in ordering registration of the second FIR for the same offences. Mr.Jani further submitted that the accused cannot be allowed to suffer trauma of double investigation for the same offence. Mr.Jani submitted that even otherwise the allegations Page 42 of 60 HC-NIC Page 42 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT in the second FIR would not make out any of the offences as alleged in the FIR against the petitioner. He submitted that the complaint before the Magistrate is also belated and in connection with such belated complaint, learned Magistrate was not justified in ordering investigation under Section 156(3) of the Code. Mr.Jani has also relied on the decision in the case of T.T.Antoy and ors. vs. State of Kerala and others reported in AIR 2001 SC 2637 and also a decision in the case of Arvindbhai Maganlal Master vs. State of Gujarat reported in 2015 (1) GLH 149.
34. Mr.Mitesh Amin, learned Public Prosecutor appearing with Ms.Thakkar, learned Additional Public Prosecutors submitted that there is no second FIR for the same offences alleged in the first four FIRs. Mr.Amin submitted that simply because during the investigation the Investigating Officer has touched the aspect of opening of bank account with Union Bank of India and of financial transactions took place in such bank account that by itself is no ground to say that for the same transaction covered under the first offences, the second FIR is lodged. Mr.Amin Submitted that the offences alleged in first FIRs for forgery of the documents and for misappropriation of the amount by using false documents are separate and distinct offences than the offences alleged in the private complaint and therefore not only there is no second FIR for the same offence but there could not be even common investigation for the private complaint.
34.1 Mr.Amin also submitted that simply because the office bearers are accused in the private complaint and are also the accused in the first four FIRs would make the private complaint Page 43 of 60 HC-NIC Page 43 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT a second FIR in absence of sameness of the incident or transaction. Mr.Amin submitted that the private complaint is as regards defalcating of huge amount from the tainted accounts opened with the Union Bank of India and such account was opened to transact un-accounted money and that too without the permission of the Charity Commissioner. Mr.Amin submitted that during the investigation it is found that the amounts transacted through the bank account in the Union Bank of India have gone beyond the sale consideration of the sale-deeds and such aspects could be part of separate investigation in connection with the private complaint.
35. Mr.Saiyed learned advocate appearing for the complainant submitted that offences alleged in the private complaint are not for the same occurrences but it is totally different than the acts alleged in the first FIRs. Mr.Saiyed submitted that the four FIRs are for four different transaction of the lands which are falsely made for committing breach with the trust and for misappropriating the funds of the trust. Mr.Saiyed submitted that the police in its report clearly stated that in connection with the application of the complainant though PSI recorded his statement but no FIR was lodged and taking note of such report, learned Magistrate committed no error in ordering investigation under Section 156(3) of the Code considering the nature of the allegations made in the complaint. Mr.Saiyed submitted that as the investigation might reveal that the amount deposited in the bank account of Union Bank of India have been used for different other illegal purposes and therefore the Court may not exercise its inherent powers at this stage to quash the private complaint.
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36. Having heard learned advocates for both the sides and having perused the complaint, the Court finds that in the complaint it is specifically alleged that the bank account with the Union Bank of India was opened by petitioners for illegal financial transactions through such bank account and when Chartered Accountant found during audit that the bank account was illegally opened and transactions in the bank were not accounted for, the complaint was required to be lodged. It is in connection with such allegations in the complaint learned Magistrate called upon the Police Commissioner to make a report as to what happened to the application made by the complainant. It was reported that some investigation was done and it was found during the investigation that bank account was illegally opened and illegal financial transactions took place and the permission of the Charity Commissioner was also not taken, for opening the said bank account. However, the FIR was not lodged. Learned Magistrate therefore ordered to register the FIR and to investigate into the FIR and make report under Section 156(3) of the Code. The Court finds that the nature of the allegations made in the first FIRs and in the private complaint are distinct and different. In the first four FIRs the allegations are of making false documents to show purchase of the lands in the name of the trust with an intention to misappropriate the trust's fund whereas in the private complaint opening of bank account with the Union Bank of India without permission of the Charity Commissioner and doing illegal financial transaction through such bank account are alleged. Simply because during the investigation of the first FIRs the investigation has touched the aspect of opening of the bank account with the Union Bank of India and of making illegal financial transactions in such bank account, that Page 45 of 60 HC-NIC Page 45 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT by itself is no ground to say that the FIR lodged as M.Case No.1 of 2015 is a second FIR. In the first FIR, the allegations are of hatching conspiracy by the office bearers of the trust with the persons outside the trust to create bogus documents with an intention to cause financial loss to the trust and to personally gain from the funds of the trust. Such are not the allegations in the private complaint.
In the case of Anju Chaudhary (supra), Honourable the Supreme Court has held and observed in paras:14, 15, 18, 25 and 43 to 45 as under:
14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.
The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, Page 46 of 60 HC-NIC Page 46 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, reinvestigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. [Ref. Rita Nag v. State of West Bengal [(2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No.91859186 of 2009 of the same date).
15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or Page 47 of 60 HC-NIC Page 47 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case.
18. The Court held as under : (Ram Lal Narang case, SCC pp. 337 38, paras 2022) "20.Anyone acquainted with the daytoday working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualize a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all, the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, Page 48 of 60 HC-NIC Page 48 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.
21. As observed by us earlier, there was no provision in the CrPC, 1898 which, Page 49 of 60 HC-NIC Page 49 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light.
Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.
22. As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a chargesheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process Page 50 of 60 HC-NIC Page 50 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT of the court. We do not think that the prosecution acted with any oblique motive. In the chargesheet filed in the Delhi court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 CrPC, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed."
25. The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the Page 51 of 60 HC-NIC Page 51 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc.
43. It is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v.
State of Bihar [(2001) 4 SCC 350], held that the expression 'same transaction' from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction.
44. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of Page 52 of 60 HC-NIC Page 52 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
45. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction".
In the case of Amitbhai Anilchandra Shah (supra), Honourable the Supreme Court has held and observed in paras:37 to 38 as under:
"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.Antony, this Court has categorically held that registration of second FIR (which is not a crosscase) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as under: (SCC pp.196197 & 200) "19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 of 157 CrPC on the basis of Page 53 of 60 HC-NIC Page 53 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT 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 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 subsection (8) of Section 173 CrPC.
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 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 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 Page 54 of 60 HC-NIC Page 54 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT as provided in Section 173 CrPC.
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*
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 subsection (8) of Section 173 CrPC 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) 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 powers under Section 482 CrpC or under Articles 226/227 of the Constitution."
The abovereferred declaration of law by this Page 55 of 60 HC-NIC Page 55 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr.Raval, learned ASG, by referring T.T.Antony submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents / occurances, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati - a potential witness to the earlier conspiracy to murder Shorabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court : (1) Upkar Singh v. Ved Prakash [ (2004) 13 SCC 292 ], (2) Babubhai v. State of Gujarat [ (2010) 12 SCC 254 ], (3) Chirra Shivraj v. State of A.P. [ (2010) 14 SCC 444], and (4) C.Muniappan v. State of T.N. [ (2010) 9 SCC 567]. In C.Muniappan this Court explained the "consequence test" i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR."
37. On the principles of law laid down in above judgments if the Court finds that second FIR is either for the same occurrence or for same transaction or a part of series of Page 56 of 60 HC-NIC Page 56 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT transactions, for which the offence is already registered, the Court may exercise its powers to quash the second FIR. However, if that is not the case but the investigation in connection with the first offence has simply touched some aspects of the second FIR that is no ground to say that second FIR is for the same offence especially when such second FIR is not by the same complainant and for different kind of offences.
In case of Surender Kaushik vs. State of Uttar Pradesh reported in (2013) 5 SCC 148, Honourable the Supreme Court has held and observed in paras:24 and 25 as under:
"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the threeJudge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had Page 57 of 60 HC-NIC Page 57 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is wellnigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR Page 58 of 60 HC-NIC Page 58 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
38. In light of above and in the facts of the case, the Court finds that the M.Case No.1 of 2015 is not second FIR for the same offences alleged in the first FIRs.
39. Mr.Jani, learned advocate however submitted that the learned Magistrate was not justified in exercising powers under Section 156 (3) of the Code as there was no application under Section 154 of the Code to the concerned police station prior in point of time. Such contention cannot be accepted as in connection with the application, the police sub inspector of the concerned police station had recorded the statement of the complainant and as stated in the report of the police commissioner some investigation was made, however, the FIR was not lodged. The Magistrate was therefore justified in exercising powers under Section 156(3) of the Code having considered the nature of the allegations made in the private complaint. The Court finds that there is also no substance in Page 59 of 60 HC-NIC Page 59 of 60 Created On Sat Aug 12 12:41:29 IST 2017 R/CR.MA/2402/2014 JUDGMENT the contention raised by learned advocate for the petitioners that the allegations of the private complaint do not disclose the offences alleged. As stated above, the allegations do disclose the offences and therefore investigation into the allegations is required as ordered by learned Magistrate. In such view of the matter, the Court finds that all these petitions are required to be dismissed.
40. In the result, all the petitions except Criminal Miscellaneous Application No.1217 of 2014 are dismissed. Rule / Notice, in each of those petitions, is discharged. Criminal Miscellaneous Application No.1217 of 2014 is allowed and the FIR being I-C.R.No.33 of 2013 registered with Surat DCB Police Station is ordered to be quashed for the petitioner. Rule, in this petition being Criminal Miscellaneous Application No.1217 of 2014, is made absolute.
41. At this stage, request is made on behalf of the petitioners to continue interim relief for eight weeks to approach the higher forum. The request is opposed by learned advocates for the respondents. The Court, however, finds that since the interim relief has been in operation and since the petitioners want to approach higher forum, no prejudice will be caused to the respondents to continue interim relief for a period of eight weeks. It is therefore ordered that interim relief in operation shall continue for a period of eight weeks.
(C.L.SONI, J.) Amit Page 60 of 60 HC-NIC Page 60 of 60 Created On Sat Aug 12 12:41:29 IST 2017