Rajasthan High Court - Jodhpur
Udai Kumar Jain vs State Of Rajasthan (2025:Rj-Jd:4326) on 22 January, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:4326]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 238/2023
Udai Kumar Jain S/o Shri Indermal Ji Jain, Aged About 68 Years,
R/o 18-A Tilak Colony Sector No. 03 Hiranmagari Udaipur
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Dinesh Kothari S/o Shri Surat Ram Kothari, Partner
Adinanth Developers Registered Address Adinath Market
Dholi Baori Inside Delhi Gate Udaipur
----Respondents
For Petitioner(s) : Mr. Deepak Menaria
For Respondent(s) : Mr. Narendra Gehlot, PP
Mr. Sudhir Saruparia
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order REPORTABLE 22/01/2025 Instant misc. petition has been filed by the petitioner for quashing of criminal proceedings arising out of FIR No. 497/2021 registered at Police Station Pratap Nagar, District Udaipur for offence under Sections 166, 196, 219, 420, 467, 468, 471, 120B IPC.
Brief facts of the case are that owing to dispute between the petitioner and the respondent no.2 regarding the business transaction and affairs of partnership deed dated 26.09.2011, respondent No.2 had made a complaint before the Judicial magistrate (City North) No.1, Udaipur on 09.07.2018. The said complaint was forwarded to the Police Station, Dhanmandi, Udaipur and FIR No. 73/2018 was registered for offence under (Downloaded on 28/01/2025 at 10:25:46 PM) [2025:RJ-JD:4326] (2 of 7) [CRLMP-238/2023] Sections 420, 467, 468, 471, 120B IPC against the petitioner and other persons. Against the said FIR the petitioner had preferred Misc. Petition before this Court being S.B. Criminal Misc. Petition No. 2858/2018 in which the co-ordinate Bench of this Court had passed an interim order in favour of the petitioner to the effect that no coercive action shall be taken against the petitioner.
During pendency of investigation in FIR No. 73/2018 and S.B. Criminal Misc. Petition No. 2858/2018, the respondent no.2 made another complaint against the petitioner which was forwarded to the SHO, Police Station Pratap Nagar, Udaipur under Section 156(3) Cr.P.C and FIR No. 497/2021 was lodged against the petitioner.
Counsel for the petitioner argued that with regard to the alleged partnership deed dated 26.09.2011, civil litigation is pending before the Civil Court and having failed to get any injunction, the respondent no.2 has been filing criminal complaints against the petitioner and other persons, prior to lodging of FIR No. 497/2021. It is argued that the allegations in the FIR No. 497/2021 and FIR No. 73/2018 are same, therefore, the FIR No. 497/2021 is nothing but a second FIR which is barred by law. He placed reliance on the judgment of Hon'ble Apex Court in the case of T.T. Antony Vs. State of Kerala reported in 2001(6) SCC 181 and Amit Anil Chand Sahu Vs. CBI reported in 2013(6) SCC 348. The petitioner has placed reliance upon the aforesaid judgments in support of his contention that the present FIR is nothing but a second FIR and therefore the same should be quashed.
Learned Public Prosecutor and counsel for the respondent no.2 vehemently argued that offences as alleged by the (Downloaded on 28/01/2025 at 10:25:46 PM) [2025:RJ-JD:4326] (3 of 7) [CRLMP-238/2023] complainant are prima facie made out against the petitioner, therefore, at this stage, the FIR is not liable to be quashed. However, counsel for the respondent no.2 is not in a position to dispute that the allegations in FIR No. 497/2021 of P.S. Pratap Nagar, District Udaipur and FIR No. 73/2018 of P.S. Dhanmandi, District Udaipur are related to same partnership deed.
I have considered the rival arguments and carefully gone through the FIR and material on record.
From the perusal of the FIRs and material on record, it is apparent that the allegations against the petitioner and other accused persons are to the effect that they prepared a forged and fabricated partnership deed in the firm Adinath Developers. Thus, the incident in both the First Information Reports are in connection of same transaction. There can be no straightjacket formula for quashing or clubbing the FIR and Courts are required to examine the facts of each case. The Court is required to see the circumstances of a given case indicating proximity of time, unity or proximity of case, continuity of action, commonality of purpose of the crime to ascertain if more than one FIR can be allowed to stand. In the opinion of this Court, there is no propriety in conducting investigation two cases separately by different investigating officers.
In the case of T.T. Antony vs. State of Kerala and others Reported in (2001) 6 SCC 181, the Hon'ble Apex Court has observed as under:
"The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know (Downloaded on 28/01/2025 at 10:25:46 PM) [2025:RJ-JD:4326] (4 of 7) [CRLMP-238/2023] of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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 F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C."
In the Case of Babubhai vs. State of Gujarat & others Reported in (2010) 12 SCC 254, the Hon'ble Supreme Court (Downloaded on 28/01/2025 at 10:25:46 PM) [2025:RJ-JD:4326] (5 of 7) [CRLMP-238/2023] has observed that while applying the test of sameness, it has been held that subsequent to registration of an FIR any further complaint in connection with the same or connected offence relating to the incident or incidents which are part of the same transaction is not permissible. The relevant observations are quoted hereunder:-
"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, (Downloaded on 28/01/2025 at 10:25:46 PM) [2025:RJ-JD:4326] (6 of 7) [CRLMP-238/2023] where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted."
In the case of Amitbhai Anilchandra Shah vs Central Bureau of Investigation and another reported in (2013) 6 SCC 348, the Hon'ble Supreme Court has considered the applicability of 'consequence test' as laid down in the case of C. Muniappan & others vs. State of Tamil Nadu Reported in (2010) 9 SCC 567 and has held that:
"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 as provided in Section 173 CrPC."(Downloaded on 28/01/2025 at 10:25:46 PM)
[2025:RJ-JD:4326] (7 of 7) [CRLMP-238/2023] In the present case in hand, the Court is satisfied with the sameness of the allegations in the two FIRs. In any case, the alleged offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR.
In the facts and circumstances of the case so also in the light of the judicial pronouncements of Hon'ble Apex Court, no case for quashing of criminal proceedings arising out of FIR No. 497/2021 registered at Police Station Pratap Nagar, District Udaipur is made out. However, since there cannot be two FIRs against the same accused in respect of the same case or cause of action and on the same set of facts, therefore, there is no propriety in allowing separate investigation in two FIRs to proceed. In this view of the matter, I am inclined to direct that the investigation of FIR No. 497/2021 registered at Police Station Pratap Nagar, District- Udaipur be clubbed with the FIR No. 73/2018 registered at Police Station Dhanmandi, District- Udaipur. The Investigating officer of FIR No. 73/2018 of Police Station Dhanmandi, District- Udaipur is directed to conduct investigation in both the FIRs and submit report before the concerned Court.
The misc petition stands disposed of. Stay application also stands disposed of.
(MANOJ KUMAR GARG),J 89-BJSH/-
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