Gujarat High Court
Maganbhai Maldebhai Vichhuda vs State Of Gujarat & 2 on 5 May, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
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 1 of 34 Created On Thu Aug 17 03:04:26 IST 2017 1 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 2 of 34 Created On Thu Aug 17 03:04:26 IST 2017 2 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 3 of 34 Created On Thu Aug 17 03:04:26 IST 2017 3 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 4 of 34 Created On Thu Aug 17 03:04:26 IST 2017
4 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 5 of 34 Created On Thu Aug 17 03:04:26 IST 2017 5 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 6 of 34 Created On Thu Aug 17 03:04:26 IST 2017 6 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 7 of 34 Created On Thu Aug 17 03:04:26 IST 2017 7 of 34 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 ========================================================== 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 ?
========================================================== 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 Page 1 of 27 HC-NIC Page 8 of 34 Created On Thu Aug 17 03:04:26 IST 2017
8 of 34 R/SCR.A/1683/2016 CAV JUDGMENT Application No.1683 of 2016 MR KB ANANDJIWALA with MR FB BRAHMBHATT, ADVOCATES for Applicants ========================================================== 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 Page 2 of 27 HC-NIC Page 9 of 34 Created On Thu Aug 17 03:04:26 IST 2017 9 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 3 of 27 HC-NIC Page 10 of 34 Created On Thu Aug 17 03:04:26 IST 2017 10 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 4 of 27 HC-NIC Page 11 of 34 Created On Thu Aug 17 03:04:26 IST 2017 11 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.
Page 5 of 27HC-NIC Page 12 of 34 Created On Thu Aug 17 03:04:26 IST 2017 12 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 6 of 27 HC-NIC Page 13 of 34 Created On Thu Aug 17 03:04:26 IST 2017 13 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.
Page 7 of 27HC-NIC Page 14 of 34 Created On Thu Aug 17 03:04:26 IST 2017 14 of 34 R/SCR.A/1683/2016 CAV JUDGMENT
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, Page 8 of 27 HC-NIC Page 15 of 34 Created On Thu Aug 17 03:04:26 IST 2017 15 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 9 of 27 HC-NIC Page 16 of 34 Created On Thu Aug 17 03:04:26 IST 2017 16 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.
Page 10 of 27HC-NIC Page 17 of 34 Created On Thu Aug 17 03:04:26 IST 2017 17 of 34 R/SCR.A/1683/2016 CAV JUDGMENT
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 Page 11 of 27 HC-NIC Page 18 of 34 Created On Thu Aug 17 03:04:26 IST 2017 18 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 12 of 27 HC-NIC Page 19 of 34 Created On Thu Aug 17 03:04:26 IST 2017 19 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 13 of 27 HC-NIC Page 20 of 34 Created On Thu Aug 17 03:04:26 IST 2017 20 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 14 of 27 HC-NIC Page 21 of 34 Created On Thu Aug 17 03:04:26 IST 2017 21 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.Page 15 of 27
HC-NIC Page 22 of 34 Created On Thu Aug 17 03:04:26 IST 2017 22 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 16 of 27 HC-NIC Page 23 of 34 Created On Thu Aug 17 03:04:26 IST 2017 23 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 17 of 27 HC-NIC Page 24 of 34 Created On Thu Aug 17 03:04:26 IST 2017
24 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 18 of 27 HC-NIC Page 25 of 34 Created On Thu Aug 17 03:04:26 IST 2017 25 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.""
Page 19 of 27HC-NIC Page 26 of 34 Created On Thu Aug 17 03:04:26 IST 2017 26 of 34 R/SCR.A/1683/2016 CAV JUDGMENT
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 Page 20 of 27 HC-NIC Page 27 of 34 Created On Thu Aug 17 03:04:26 IST 2017 27 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 21 of 27 HC-NIC Page 28 of 34 Created On Thu Aug 17 03:04:26 IST 2017 28 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 22 of 27 HC-NIC Page 29 of 34 Created On Thu Aug 17 03:04:26 IST 2017 29 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 23 of 27 HC-NIC Page 30 of 34 Created On Thu Aug 17 03:04:26 IST 2017 30 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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.
Page 24 of 27HC-NIC Page 31 of 34 Created On Thu Aug 17 03:04:26 IST 2017 31 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 Page 25 of 27 HC-NIC Page 32 of 34 Created On Thu Aug 17 03:04:26 IST 2017 32 of 34 R/SCR.A/1683/2016 CAV JUDGMENT 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 .
Page 26 of 27HC-NIC Page 33 of 34 Created On Thu Aug 17 03:04:26 IST 2017 33 of 34 R/SCR.A/1683/2016 CAV JUDGMENT (MS SONIA GOKANI, J.) SUDHIR Page 27 of 27 HC-NIC Page 34 of 34 Created On Thu Aug 17 03:04:26 IST 2017 34 of 34