Gujarat High Court
Maganbhai Maldebhai Vichhuda vs State Of Gujarat & 2 on 25 July, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1683/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 1683 of 2016
With
CRIMINAL MISC.APPLICATION NO. 8025 of 2016
In
SPECIAL CRIMINAL APPLICATION NO. 1683 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MAGANBHAI MALDEBHAI VICHHUDA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2 - 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
Criminal Miscellaneous Application No.8025 OF 2016 in Special Criminal
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Application No.1683 of 2016
MR KB ANANDJIWALA with MR FB BRAHMBHATT, ADVOCATES for
Applicants
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 25/07/2016
CAV JUDGMENT
1. This petition is preferred under Article 226 of the
Constitution of India read with section 482 of the Code of
Criminal Procedure by the original complainant seeking
appropriate direction with regard to registration of First
Information Report ("FIR" for short) on the ground that
investigating agency has failed to register separate FIR for the
offences arising out of two different occurrences. There has
been wrong clubbing of two incidents into one FIR, and
therefore, separate FIR is being sought with the following
prayers:-
"7. The petitioner, therefore, prays that this Hon'ble Court
be pleased:
(a) To allow the present petition;
(b) To hold and declare the action of concerned
investigating agency in filing one FIR for two separate
incidents as bad in law, illegal, malafide and be pleased to
direct concerned investigating authority to register separate
FIR for two different incidents;
(c) To direct concerned investigating agency to register
another FIR for the incident which is wrongly clubbed into
FIR being I-CR No.41/2015 registered with Kutiyana Police
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Station, District Porbandar;
(d) To direct the concerned respondent to register two
separate FIRs for two different incidents as indicated in the
present petition;
(e) To direct respondent No.2 to act in accordance with
law as per the directions issued by this Hon'ble Court in
order passed in Special Criminal Application No.7164/2015
and further direct to do needful for registration of separate
FIR in connection with incident narrated in the present
petition;
(f) Pending admission, hearing and final disposal of this
petition, to direct the concerned respondent to produce
Action Taken Report(ATR) pursuant to the order passed in
Special Criminal Application No.7164/2015;
(g) To pass any other and further orders as may be
deemed fit and proper to this Hon'ble Court."
2. Brief facts leading to this petition deserve mention at this
stage:-
2.1 On the 10.9.2015, at village Ishwaria of taluka Kutiana,
district Porbandar, Shri Magan Malde Vinjuda, the complainant-
petitioners' sons had done video shooting of illegal excavation
of soil done by one Parbat Meraman and his group from the
land belonging to Cooperative Society (Mandali) and managed
by the complainant, when they went for grazing the buffaloes.
Hearing the news, at around 10 a.m., the petitioner and his son
Vijay and nephew Ravjibhai proceeded to go to the canal
where the land was situated in the said village. They found
presence of Parbat Meraman, Milan Vija, Ramesh Masri and
others in all about 10 persons, who were armed with deadly
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weapons. Complainant's relationship with Parbat Meraman and
his group was sore on account of the very land belonging to
the Cooperative society. Ravjibhai had asked to the
complainant not to enter into any kind of acrimonious
exchange and insisted that they were desirous of amicable
settlement of disputes. Complainant was, however, assaulted
with wooden baton by Parbat Meraman on his forehead and on
the leg which made him lose his balance and he fell down in
the canal. Taking advantage of that situation, his son Vijay was
given a blow with the sword by Hira Viram. Both Ravji Lakha
and Ramesh Dana intervened and at that stage, Parbat
Meraman abused the complainant on his caste and threatened
him not to be nearer to the land belonging to the Cooperative
Society while keeping a revolver in his pocket and went away
with his group on their motorbikes.
The complainant and his son were taken to the Civil Hospital,
Porbandar for their medical treatment by his nephew Rajubhai.
During the treatment at the Civil Hospital in the evening, the
petitioner complainant heard of another incident that several
persons (accused) had assaulted his second son Nitin aged 23
years and his nephew Rahul and his brother Deva Malde
Vinjuda with deadly weapons when both Rahul and Nitin had
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gone to the fields to wade the buffaloes. Leaving his treatment
half way, he rushed to get protection for his family. His son
Nitin succumbed to the grave multiple injuries he sustained on
various parts of his body during the second incident on 14th
September, 2015.
According to Deva Malde alias the Devji Malde , younger
brother of the complainant, at around 2.30 to 3 o'clock, a
villager Abha Meraman came on his motorbike and asked him
to bring back his son Rahul and nephew Nitin, who had gone to
wade the Buffaloes, as he apprehended some serious and
graver incident. He went on his motor cycle and he found while
reaching near the land that there were about 15 persons, who
were assaulting his son Rahul and nephew Nitin. This witness
himself was also injured in the process of rescuing both young
boys and he also noticed that Parbat Meraman had a Revolver
and others with deadly weapons had mercilessly beaten both
his son and nephew and thereafter, they were abducted in the
motor car. He then intimated his brother about the said
incident.
2.2 In the said backdrop of facts, the question that would
arise is as to whether lodging of one complaint would suffice.
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2.3 FIR was lodged by the police on 10.9.2015 for the
offences punishable under sections 302, 323, 324, 325, 326,
315, 506(2), 143, 147, 148 and 149 of the Indian Penal Code
and under sections 25(1)(BA) of the Arms Act and section 135
of the Gujarat Police Act and Section 3(2)(5) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 for both the incidents.
2.4 Both the incidents, according to the petitioner, were
different and separate FIR ought to have been registered.
However, due to some vested interest and extraneous reasons,
only on FIR was registered, that too, after the second incident.
This had been strongly objected to by the petitioner and his
brother, but, no need was paid by the police authorities.
3. The petitioner also had intimated the Superintendent of
Police, Porbandar regarding such lapse and nothing was done
at his end. He, therefore, approached this Court by preferring
Criminal Miscellaneous Application No.7164 of 2015 seeking
appropriate direction.
4. This Court (Coram: J.B. Pardiwala, J. ) vide its order dated
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28.1.2016 directed the Superintendent of Police to look into
the matter and consider the directions of the Apex Court with
regard to the subject matter involved and take appropriate
decision at the earliest.
5. It is the grievance of the petitioner that till date the
matter has not been considered and the petitioner has been
running from post to pillar to get justice. Therefore, the present
petitioner has approached this Court with aforementioned
prayers.
6. Applicants of Criminal Miscellaneous Application No. 8025
of 2016 are the accused, who have sought impleadment in
Special Criminal Application No.1683 of 2016 on the ground
that this petition is nothing but a sheer abuse of process of
law. It is also their say that when Superintendent of Police,
Porbandar, as per direction issued by this Court in Special
Criminal Application No.7164 of 2016 is looking in to the
matter, present petition is not at all desirable. Applicants will
be seriously prejudiced, if the Court directs lodgment of
another complaint in relation to both the incidents, and
therefore, also it is urged that the applicants be impleaded as
party defendants.
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7. On 5.4.2016, this Court in Special Criminal Application
No.1683 of 0216 had directed to get the details from
concerned District Superintendent of Police pursuant to the
directions issued by this Court vide its order in Special Criminal
Application No. 7164 of 2015.
8. It was submitted that on 18.4.2016 that due to
disturbances in the State, the officer concerned has not
reported. Therefore, the matter was posted on 25.4.2016. The
matter thereafter had been proceeded on 25.4.2016 as well as
on 12.5.2016. However, no affidavit has been filed by either
Superintendent of Police, Porbandar or of any officer junior to
him indicating as to whether the officer concerned had
complied with the direction of this Court or not.
9. It is profitable to refer to order passed by this Court on
dated 5.4.2016:-
"1. Earlier the petitioner-original complainant had
approached this Court by way of preferring Special Criminal
Application No.7164 of 2015 seeking the selfsame relief of
lodging separate first information reports for both the
incidents. This Court after hearing both the sides had passed
the following order:
6. He drew my attention to the first information report
itself filed by the petitioner herein wherein it has been
stated that while they are being treated in the hospital
in connection with the first incident, his son, namely,
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Nitin and his nephew, namely, Rahul were assaulted.
It appears that its Nitin, who succumbed to the
injuries.
7. Although, this issue has been considered by the
Deputy Superintendent of Police, Porbandar (Rural), it
will be in the fitness of things if it is once again looked
into by the Deputy Superintendent of Police himself.
He shall consider the papers of the charge-sheet and
the two decisions which have been quoted above. He
shall take an appropriate decision in this regard at the
earliest, keeping in mind that the case is one of
murder.
2. Shri Virat Popat, learned counsel appearing for the
petitioner, submits that the original accused in respect of a
first information report lodged vide I-C.R. No.39 of 2015
registered with Kutiyana Police Station, Porbandar, have also
preferred Criminal Miscellaneous Application No.8025 of
2016 for impleading them as party respondents in the
present petition, which is being specifically objected to by
the learned counsel Shri Virat Popat appearing for the
petitioner. He has insisted for lodging of separate first
information reports for two separate incidents which had
taken place in the morning as well as in the afternoon.
3. Notice to the respondent Nos.2 and 3, returnable on
April 18, 2016. The learned Additional Public Prosecutor
ensures to get the details from the concerned District
Superintendent of Police.
4. Let a report regarding application of mind pursuant to
the direction of this Court come before this Court on or
before the returnable date.
Direct Service is permitted."
10. It is to be noted that this Cort had specifically desired the
report of compliance of earlier order, the same had not come
forth.
10.1 However, later on, the said report dated 14.4.2016 is
placed on record. There appears to be a rush made by the
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officer since he had missed the deadline and this Court had
fixed for hearing the said matter.
10.2 As can be noted from the report dated 14.4.2016
prepared by the Superintendent of Police, Porbandar both the
incidents according to him have arisen from the same
transaction. It is his say that the second FIR is not required as
the subsequent offence is forming part of the first incident and
it arises as a consequence of the offence alleged in the first
offence. Thus the offences arising as a consequences of the
offence alleged in the first FIR, no separate FIR is desirable. He,
of course, has said in the last paragraph in this very breath
that he was ready to lodge the second FIR initially but the
complainant never turned up and they wanted to take advice
of their lawyer.
10.3 It thus appears that communication dated 14.4.2016
bears the testimony that the officer treated the second
occurrence as the occurrence in the same transaction. The
outcome, has aggrieved the petitioner, he therefore, has urged
this Court to direct the concerned authority to lodge the
separate FIRs for both the incidents of morning and afternoon.
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11. Learned advocate Mr. Virat Popat has submitted that the
complaint being C.R.No.I-39 of 2015 registered with Kutiyana
police station, Porbandar is in relation to both the incidents
that had happened on the fateful day. According to him, both
the incidents are totally and completely different, and
therefore, the same FIR could not have been filed for both the
incidents. According to him, the two incidents that have
happened on the same day are neither part of the same
transaction nor are having any commonality of parties. They
being different offences not committed in the same course of
transaction, the registration will have to be separated.
12. Learned advocate Mr. K.B.Anandjiwala appearing with
learned advocate Mr. F.B.Brahmbhatt for applicants original
accused seeking impleadment of the accused in this petition
has also urged on merit that both the incidents have
commonality of parties and there is continuity of action, as
different offenses are alleged to have been committed in the
same course of transaction. He sought to rely upon the
decision of the Apex Court in the case of Amitbhai
Anilchandra Shah vs. Central Bureau of Investigation
reported in (2013)6 SCC 348. He has emphasized that there
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can be no second FIR for the incidents which are the acts
constituting the same transaction and consequently there can
be no fresh investigation on receipt of subsequent information
in respect of the same cognizable offence nor can the same
occurrence or incident give rise to more than one cognizable
offences. The police officer has to investigate not merely
cognizable offence reported in FIR, but, also other connected
offence found to have been committed in the course of same
transaction or the occurrence and file report as provided under
section 173 of the Criminal Procedure Code. According to him,
if at all there is a need, it would be of further investigation. He
has urged that in the first incident, minor injuries were caused
and cognizable offence was informed to the police for the first
time at 14:40 hrs and after 5 hours. The petitioner had
informed the police to separately file the FIR, which cannot be
registered and the petition deserves to be rejected. Moreover,
the District Superintendent of Police concerned is expected to
consider the direction of this Court and his report is yet to
arrive. Before the same is received, second petition is
preferred, and therefore, also the petition is premature.
13. Learned Additional Public Prosecutor appearing for the
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State has urged that the order has been passed by this Court
on 28.1.2016. The petitioner should allow sufficient time to the
concerned officer instead of waiting for him to take a decision.
The learned Additional Public Prosecutor has urged to this
Court, therefore, at this stage, the petition need not be
entertained.
14. From the rival submissions, it is to be noted that
Maganbhai Maldebhai Vichuda, the present petitioner, on
10.9.2015 at around 10:00 a.m. was going with his nephew
and his son when he was alleged to have been attacked by
some of the accused. This was in connection with the dispute
of the land as detailed hereinbefore. His nephew Ravji
Lakhabhai had intervened and for the injuries sustained by the
petitioner and his son, they had gone to the Civil Hospital,
Probandar for treatment.
15. Another incident that took place at around 2:30 p.m, in
the afternoon has been narrated by the injured eye-witness
Rahul, who is the nephew of the petitioner. He has stated that
the son of the petitioner sustained injuries at the hands of the
accused persons and during the course of his medical
treatment (he succumbed to the injuries). The second incident
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is detailed by not only the nephew of the petitioner, but, his
brother Deva Malde also, who too sustained injuries in an
attempt to save young boys of his family. Only one FIR has
been lodged in relation to these two incidents being C.R.No.I-
39 of 2015.
16. There has to be FIR about the incident which constitutes
cognizable offence as held by the Apex Court in the case of
Anju Chaudhary vs. State of U.P. and another reported in
2013(3) GLH 237. The purpose of registering an FIR is to set
the machinery of criminal investigation into motion, which
culminates into filing of the Police report in terms of section
173(2) of the Code. However, where the incident is separate;
offences whether 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.
16.1 The Court has held that what is vital is to examine the
inbuilt safeguards provided by the legislature in the very
language of section 154 of the Code.
16.2 In essence, for the same offence, two FIRs are
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impermissible and for separate incidents, one FIR is not
contemplated. Principle of double jeopardy needs to be borne
in mind.
16.3 It is further held and observed that 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
offence or is based upon distinct and different facts and
whether its scope of inquiry is entirely different or not. Laying
down a straitjacket formula which would uniformly apply to all
cases is not possible to set. This will always be a mixed
question of law and facts depending upon the merits of a given
case.
16.4 Relevant paragraphs of the said judgment are reproduced
hereinbelow:-
"15. 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 incharge 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.
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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, 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, re-
investigation 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.9185-9186 of 2009 of the same date).
16. 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 offence or is based upon distinct and
different facts and whether its scope of inquiry is entirely
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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. In the case of
Ram Lal Narang v. State (Delhi Administration) [(1979) 2
SCC 322], the Court was concerned with the registration of a
second FIR in relation to the same facts but constituting
different offences and where ambit and scope of the
investigation was entirely different. Firstly, an FIR was
registered and even the charge-sheet filed was primarily
concerned with the offence of conspiracy to cheat and
misappropriation by the two accused. At that stage, the
investigating agency was not aware of any conspiracy to
send
the pillars (case property) out of the country. It was also not
known that some other accused persons were parties to the
conspiracy to obtain possession of the pillars from the court,
which subsequently surfaced in London. Earlier, it was only
known to the Police that the pillars were stolen as the
property within the meaning of Section 410 IPC and were in
possession of the accused person (Narang brothers) in
London. The Court declined to grant relief of discharge to
the petitioner in that case where the contention raised was
that entire investigation in the FIR subsequently instituted
was illegal as the case on same facts was already pending
before the courts at Ambala and courts in Delhi were acting
without jurisdiction. The fresh facts came to light and the
scope of investigation broadened by the facts which came to
be disclosed subsequently during the investigation of the
first FIR. The comparison of the two FIRs has shown that the
conspiracies were different. They were not identical and the
subject matter was different. The Court observed that there
was a statutory duty upon the Police to register every
information relating to cognizable offence and the second
FIR was not hit by the principle that it is impermissible to
register a second FIR of the same offence. The Court held as
under :
"20.Anyone acquainted with the day-to-day 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
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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, 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, expressly or by necessary implication,
barred the right of the police to further investigate after
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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. 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
charge-sheet to the Delhi court and the withdrawal of the
case in the Ambala court amounted to an abuse of the
process of the court. We do not think that the prosecution
acted with any oblique motive. In the charge-sheet 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.""
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17. The law recognizes common trial for one series of act,
which when connected together would form the same
transaction as contemplated under section 220 of the Criminal
Procedure Code. The Apex Court in the case of Mohan Baitha
and others vs. State of Bihar and another reported in
(2001) 4 SCC 350 held that expression "same transaction"
from its very nature is incapable of an exact definition. It is not
intended to be interpreted in any artificial or technical sense.
Common sense and the ordinary use of language must decide
whether in a particular case, a series of acts are so connected
together so as to form the same transactions is purely a
question of facts. Proximity of time, unity or proximity of place,
continuity of action or community of purpose are some of the
factors to decide whether certain acts form part of the same
transaction, it can be held to be one transaction. Relevant
paragraph of the said judgment are reproduced as under:-
"4. Mr. P.S.Mishra, the learned senior counsel, appearing
for the accused persons contended that under Section 177
of the Code of Criminal Procedure, an offence could be
inquired and tried by the Court in whose local jurisdiction,
it was committed and consequently on the basis of
allegations made in the F.I.R. as well as the complaint
filed, the incident constituting the alleged offence under
Section 304B being at Jahanaganj (Azamgarh) in the state
of Uttar Pradesh, the Magistrate at Bhagalpur in the State
of Bihar will not have territorial jurisdiction to try the
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offence. Mr. Mishra also further contended that on the
basis of allegations made, no offence under Section 406
IPC can be said to have been constituted. On examining
the assertions in the F.I.R. and the complaint as well as on
scrutinizing the judgment of the learned Single Judge of
Patna High Court, which is the subject matter of challenge,
we do not find any substance in either of the contentions
raised by Mr. Mishra. So far as the contention relating to
the constitution of offence under Section 406 is concerned,
we are not required to examine the same, since the
accused never assailed the criminal proceedings itself on
the ground that no offence under Section 406 IPC can be
said to have been committed. The accused merely
assailed the territorial jurisdiction of the criminal court at
Bhagalpur in relation to offence under Section 304B on the
ground that the said offence stood committed in Uttar
Pradesh. Section 177 of the Code of Criminal Procedure on
which Mr. Mishra relies, uses the expression "ordinarily".
The use of the word "ordinarily" indicates that the
provision is a general one and must be read subject to the
special provisions contained in the criminal procedure
code. That apart, this Court has taken the view that the
exceptions implied by the word "ordinarily" need not be
limited to those specially provided for by the law and
exceptions may be provided by law on considerations of
convenience or may be implied from other provisions of
law permitting joint trial of offences by the same court
(See Purshottamdas Dalmia vs. The State of West Bengal),
(L.N.Mukherjee vs. The State of Madras and (Banwari Lal
Jhunjhunwala and Ors. Vs. Union of India and Anr. 1963
Supp.(2) SCR,338).) Even the Law Commission in its 41st
Report had observed that the general rule laid down in
Section 177 is neither exclusive nor peremptory. The
learned Single Judge while dismissing the contention
raised by the accused has relied upon Section 220 of the
Code of Criminal Procedure and considering the narration
of events culminating in the death of Kalpana, which
constitutes offence under Section 304B of the IPC, the
learned Single Judge has come to a conclusion that there
appears to exist a continuity of action to attract Sub-
section(1) of section 220, and therefore, it cannot be said
that the jurisdiction of the Magistrate at Bhagalpur is
ousted to try the offence under Section 304B. The High
Court also has casually observed that the assertions made
prima facie constitute an offence under Section 498A and
since the accused has approached the Court even before
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the Magistrate has applied his mind to the result of the
investigation on the basis of the allegations made by the
informant/complainant, it would not be appropriate to
express any definite opinion on the same. According to Mr.
Mishra, from the tenor of the impugned judgment, it can
be well imagined that the judgment is rather strained one
and has been passed in view of the earlier directions and
by no stretch of imagination, the incident constituting the
offence under Section 304B can be held to be one falling
under Section 220 of the Code of Criminal Procedure, so as
to be tried along with the offence under Section 406 at
Bhagalpur. It may be noticed that under Section 220 of the
Code of Criminal Procedure, offences more than one
committed by the same persons could be tried at one trial,
if they can be held to be in one series of acts, so as to
form the same transaction. The expression "same
transaction" from its very nature is incapable of an exact
definition. It is not intended to be interpreted in any
artificial or technical sense. Common sense and the
ordinary use of language must decide whether on the facts
of a particular case, it can be held to be in one transaction.
It is not possible to enunciate any comprehensive formula
of universal application for the purpose of determining
whether two or more acts constitute the same transaction.
But the circumstances of a given case indicating proximity
of time, unity or proximity of place, continuity of action
and community of purpose or design are the factors for
deciding whether certain acts form parts of the same
transaction or not. Therefore a series of acts whether are
so connected together as to form the same transaction is
purely a question of fact to be decided on the aforesaid
criteria. Bearing in mind the aforesaid principles and on
scrutiny of the narration of events in the F.I.R. as well as
the complaint, we do not find any infirmity with the
conclusion of the High Court in applying Section 220 of
the Criminal Procedure Code to the case in hand and in
coming to the conclusion that the jurisdiction of the
Magistrate at Bhagalpur cannot be held to have been
ousted for the offence under Section 304B IPC. In the
aforesaid premises, we see no merits in this appeal, which
accordingly stands dismissed. The interim order of stay
stands vacated and the Magistrate is directed to proceed
with the matter expeditiously, in accordance with law."
18. In the case of Amitbhai Anilchandra Shah vs. Central
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Bureau of Investigation and another reported in (2013) 6
SCC 348, the Apex Cort had quashed the second FIR and
chargesheet filed in the second FIR was directed to be treated
as supplementary chargesheet in the first FIR on the ground
that the second FIR is permissible only if the offence disclosed
is not part of the first FIR or do not form part of the same
transaction as covered in the first FIR.
18.1 The Apex Court held that there can be no second FIR and
consequently, there can be no fresh investigation on receipt of
every subsequent information in respect of the same
cognizable offence or the same occurrence or incident giving
rise to one or more cognizable offences. It referred to the case
of C.Muniappan vs. State of Tamil Nadu reported in
(2010)9 SCC 567 wherein "consequence test" is laid down,
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.
18.2 Furthermore as held in the said judgment merely because
two separate complaints had been lodged did not mean that
they could not be clubbed together and one charge-sheet
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could not be filed.
18.3 The Court further held that if two FIRs pertain to two
different incidents or crimes, second FIR is permissible. Second
FIR is also permissible when pursuant to the investigation in
the first FIR, a larger conspiracy is disclosed which was not a
part of the first FIR.
19. The law on the subject thus is very well settled. In
absence of any straitjacket formula, the parameters set out in
the case laws discussed hereinabove deserve to be taken into
account for determining whether the incidents are the separate
incidents involving two FIRs as the occurrences in the very
transaction which on application of consequence test can be
said to be offences arising as a consequence of offences
alleged in the first FIR.
20. In the matter on hands, the officer concerned has failed
to follow the well settled principle of law has been stated
herein-above while taking the decision. The first offence is of
only assault to the complainant, his son and to other relatives
for which there was no FIR till the complainant came to know of
the second incident.
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20.1 His young son and nephew were followed by the accused
allegedly due to the conspiracy hatched due to old animosity
and they were assaulted with deadly weapons and also
abducted. The same culminated into murder of his young son.
Second incident reflects graver offence and larger conspiracy
which was missing earlier. The first incident appears more a
case of civil dispute resulting into criminal act in an attempt to
exhibit strength and muscle power. The second offence is not
the consequence of the first occurrence, the issue of land may
be the genesis for hatching a larger conspiracy and the dispute
in relation to the land appears to be the reason for this ugly turn of
events. However, to say that the second incident was the
consequence and not a separate incident by no stretch is found
acceptable and hence, one FIR would not meet the
requirement.
21. This Court is conscious that the chargesheet is already
laid in this matter on 14.10.2015 and some of the accused in
both the FIRs may be common. However, since the law
requires lodgment of separate FIRs, it is for the officer
concerned to lodge a separate FIR either of the first incident
and/or also to add offence of conspiracy and other offences in
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the existing FIR.
22. Investigation of the separately registered FIR shall be
completed within 3 months from the date of receipt of the copy
of this order.
22.1 In the existing FIR where chargesheet is already filed,
required addition of offences shall be completed within the
same period, if need be so, Sessions Case shall proceed
thereafter in accordance with law.
23. With these directions and observations, this petition is
disposed of accordingly.
24. At this stage, learned advocate Mr.Brahmbhatt for the
petitioner requests for stay of this order to enable the accused
to approach to challenge the same before the Apex Court.
Request is acceded to. Let there be stay of this order for the
period of six weeks from the date of receipt of the copy of this
order.
Criminal Miscellaneous Application No.8025 of 2016 in
Special Criminal Application No.1683 of 2016
In view of the order passed in the main matter, present
application stands disposed of .
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(MS SONIA GOKANI, J.)
SUDHIR
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R/SCR.A/1683/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 1683 of 2016
[On note for speaking to minutes of order dated 25/07/2016 in
R/SCR.A/1683/2016 ]
With
CRIMINAL MISC.APPLICATION NO. 8025 of 2016
In
SPECIAL CRIMINAL APPLICATION NO. 1683 of 2016
==========================================================
MAGANBHAI MALDEBHAI VICHHUDA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2 - 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/05/2017
ORAL ORDER
By way of note for speaking to minutes request is made to extend the time upto 15th July, 2017, so, that, question of interpretation of the period of six weeks is avoided. Request is allowed. Extension of time is granted upto 15th July, 2017.
It is urged that the investigation of the second offence is completed and chargesheet is submitted. The petitioner has lodged different FIRs for separate offences and not for Page 1 of 7 HC-NIC Page 28 of 34 Created On Thu Aug 17 03:04:23 IST 2017 28 of 34 R/SCR.A/1683/2016 ORDER addition of any offences.
Learned advocate Mr. Brahmbhatt appearing for the respondent. Learned advocate of the present applicant has drawn the attention of this Court to the fact that use of word "and/or" in Para 21 may cause confusion and there was no prayer for original complainant to add any offences under existing FIR. Use of both the words may amount to grant for that purpose.
Learned advocate Mr. Virat Popat has objected to any change on the ground that this amount to nullifying the act of entire order. He also urged that complainant cannot be relegated to the mercy of investigating agency by deleting the word "and" from the last but one line of para 21.
The scope of speaking to minutes notes has been well considered by the Division Bench of this Court in Misc. Civil Application( For orders) No. 959 of 2015 in First Appeal No. 631 of 2005. It would be worth to produce the same:-
4. The Gujarat High Court Rules,1993 under Chapter XI under the headingJudgment and Decree provides in Rule 137, the procedure when the learned advocate wishes to place a judgment before the Court for speaking to minutes. It would be apt to reproduce the rule at this stage, which is as under:
137.Procedure when Advocate wishes to keep judgment before the Court for speaking to minutes. Whenever an Advocate wants a judgment to be kept before the Court for speaking to the Page 2 of 7 HC-NIC Page 29 of 34 Created On Thu Aug 17 03:04:23 IST 2017 29 of 34 R/SCR.A/1683/2016 ORDER minutes, he shall file a note in the office showing the points on which he wants to speak to the minutes and he shall also serve a copy thereof on the Advocate for the other side.
5. Following the said rule, the learned advocate for the applicants has filed a note in the office showing the points on which he wants to speak to the minutes and he also served a copy thereof to the learned advocate of the other side.
5.1 Learned advocate Ms.Megha Jani was requested by us to act as an amicus curiae also at the time of deciding Miscellaneous Civil Application. She has assisted the Court on being served with the copy of the note filed by learned advocate for the applicants.
5.2 It is argued and urged by learned Assistant Government Pleader that there is a limited scope of Speaking to Minutes. Since there were several factual aspects raised in a reported decision, this Court has held that it is not possible to give clarification as sought in the note.
6. In the decision rendered in the case of Bhagwandas D. Tandel vs. (Shri)S.N.Sinha, D.G.P. and others reported in 1996(1) G.L.H.433, this Court was dealing with a petition challenging the order of transfer, where the petitioner had also earlier preferred a petition, challenging the very order of transfer which was permitted to be withdrawn. Since the order of withdrawal was passed by the coordinate Bench, a request was made by the learned counsel to the Court deciding the later petition to adjourn the hearing for some time to enable the petitioner to file a Note for Speaking to Minutes before the previous Bench which permitted withdrawal of the first petition.
Such note was filed and the Court declined to entertain the note since many factual, contentious issues were raised. Relevant findings and observations deserve reproduction profitably hereinbelow:
13. Mr. Tanna, no doubt contended that the Court in previous petition permitted withdrawal by using the expression ... at this stage... meaning thereby that Page 3 of 7 HC-NIC Page 30 of 34 Created On Thu Aug 17 03:04:23 IST 2017 30 of 34 R/SCR.A/1683/2016 ORDER according to the Court the petition was premature in absence of production of the copy of order of transfer. Such withdrawal will not preclude the petitioner from filing a petition when cause of action accrues. As far as the order passed by the Court is concerned, it is not in dispute that such fact is not recited in the order. On the contrary, it appears that the petitioner had argued the matter and agitated the points raised in the petition, which is reflected in the order itself by the use of expression ... having argued the matter for some time... in my opinion, it is not proper on my part, sitting as a coordinate Court either to add anything to that order or to subtract something from what is stated in black and white. The learned Counsel for the petitioner made a request to this Court to adjourn the hearing of this petition for some time so as to enable the petitioner to file a note for Speaking to Minutes:
was filed and the Court passed the following order on October 19, 1995:
... The order for which this matter was moved for speaking to minutes was passed on 691995. In the application for speaking to minutes, several factual aspect have been raised and it is not possible for this Court to give the clarification as sought in this note. Learned counsel, therefore, seeks to withdraw this note of minutes. The request in the note of minutes is therefore declined and rejected accordingly.
7. In the case of Ahmedabad Municipal Corporation vs. Ahmedabad Municipal Corporation Octroi Karmachari Sangh and others reported in 2002(3) GLH 461, the petition was for quashment of the Award passed by the Arbitrator where various aspects were decided. One of the contentions by learned counsel appearing for the petitioner was that the Tribunal erroneously held Page 4 of 7 HC-NIC Page 31 of 34 Created On Thu Aug 17 03:04:23 IST 2017
31 of 34 R/SCR.A/1683/2016 ORDER that it had no jurisdiction to entertain and decide the matter about the application for speaking to minutes as the Arbitrator had become functus officio. The Court found no substance in such arguments because the application for speaking to minutes, according to the Court, was in the nature of review of the decision and for quashing and setting aside the main Award and for giving a fresh Award. It was held that even if the Arbitrator had not become functus officio as contended by learned counsel for the petitioner, the Note for speaking to minutes can be entertained only for clerical, typographical or arithmetical errors and it would not allow for review of the main award.
8. This Court, in the case of Sharad Bansilal Vakil vs. Sankalchand Himatlal Sheth, decided on 25.8.1980, was considering the note filed by the petitioner in his capacity as an advocate for the respondent in the original writ petition. This was done under Rule 2 of Chapter X of the Bombay High Court Appellate Side, Rules, 1960 and the note was addressed to the Registrar, where the request made was to the effect that the judgment rendered in the original writ petition should be kept before the Court for speaking to minutes. The note, as required by the rule, set out points on which it was necessary to speak to the minutes. Points stated before the Court made grievance that important points raised were not considered in the judgment and the Court observed that they were dealt with and rejected by stating that the judgment might not have reproduced the arguments in the language used by the petitioner.
9.1 The Court held that the minutes book of the learned Judges recorded arguments, which were not part of the original or regular record since they are neither pleadings nor documents tendered by the parties to be formally taken on record. 9.2 The Court also held that Rule 2 of Chapter XI contemplates Speaking to Minutes. The rules do not anywhere refer to the minutes book of the Judges. Chapter XV which deals with destruction of records and lays down detailed guidelines with Page 5 of 7 HC-NIC Page 32 of 34 Created On Thu Aug 17 03:04:23 IST 2017 32 of 34 R/SCR.A/1683/2016 ORDER regard to preparation of various kinds of documents, makes no provision with regard to minute books. The contention of the petitioner therein was negatived by the Court that since learned Judges had referred their minute books in the course of their order on the note for Speaking to Minutes and based their decision on a question arising before them from the record of arguments in such minute books, the minute books automatically become a part of the record. The Court also held that the question whether inspection of minutes books could be given and whether copies of extracts therefrom could be supplied were, under the aforesaid circumstances, not within the purview of the Assistant Registrar to decide. Such prayers could have been decided only by learned Judges who had decided the original writ petitions and the subsequent note for Speaking to Minutes.
10. It has been argued before us by the learned advocate for the applicants that this decision of Sharad Bansilal Vakil(supra) had not been placed before the learned Single Judge of this Court when the decision was rendered in the case of Ahmedabad Municipal Corporation(supra) where the Court held that for correcting clerical, typographical or arithmetical errors only, a Note for Speaking to Minutes can be entertained. There is no provision, till date, of preservation of the minutes books of judges. Of course, rule 137 permits the advocate to move a note on which he can speak to minutes. As also held in case the of Sharad Bansilal Vakil(supra) no rule is found anywhere which contemplates the minutes book of the judges to be part of this record. The scope is not limited to what is held in the case of Ahmedabad Municipal Corporation (supra) and yet, in the absence of a specific rule, its scope cannot be amplified to cover prayers of review or recall."
A request for removal of word "and" on the ground that it has crept inadvertently is not acceded to. Therefore, note for speaking to minutes is not entertained. It is being Page 6 of 7 HC-NIC Page 33 of 34 Created On Thu Aug 17 03:04:23 IST 2017 33 of 34 R/SCR.A/1683/2016 ORDER however, clarified that the order of this Court is for lodging a separate FIR of the first incident, consequently, the prerogative of the investigating officer of making any addition or deletion, so far as the existing FIR is concerned is not in any manner controlled by the Court.
This, Note for speaking to Minutes stands disposed of accordingly.
(MS SONIA GOKANI, J.) VARSHA Page 7 of 7 HC-NIC Page 34 of 34 Created On Thu Aug 17 03:04:23 IST 2017 34 of 34