Gujarat High Court
Kamleshkumar Bansilal Thakkar vs State Of Gujarat on 27 March, 2024
NEUTRAL CITATION
R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6800 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KAMLESHKUMAR BANSILAL THAKKAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
MR MAULIK G NANAVATI(3318) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/03/2024
ORAL JUDGMENT
1. By this application under section 482 of the Code of Criminal Procedure,1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the first Page 1 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined information report being C.R. No.I-36 of 2015 registered before the Bodeli Police Station, Chhota Udaipur for the offence punishable under sections 406, 420, 463, 464, 467, 468, 469, 471 and 120B of the Indian Penal Code.
2. In nutshell, the case of the prosecution is that the impugned FIR has been filed by the first informant who happens to be the son-in-law of Prahladbhai, at present residing at U.S.A., who is having some parcels of land in the sim of village Patra bearing Revenue Survey Nos.70 and 88. The said Prahladbhai has two sons namely, Nimesh Prahladbhai Bhagat and Hareskrishna Prahladbhai Bhagat. Nimesh is the elder son and Prahaldbhai and his younger son Harekrishna Bhagat are settled in the U.S.A past couple of years. Prahladbhai, during his life time, handed over in equal proportion a parcel of land in favour of his two sons, namely, Nimeshbhai and Harekrishna. The details of the land running in the name of Prahladbhai Ramanbhai Patel (Bhagat) is as under:
Block / Survey No. Area Aakar Rs./paise 70 paiki 1 - 82 10 1.31 88 paiki 2 - 45 34 11.22 2.1 The details as regards the land running in the name of Harekhrishna Prahladbhai Patel (Bhagat) i.e. the younger son of Prahladbhai Bhagat is as under;
Block / Survey No. Area Aakar Rs./paise 106/A paiki 0-60-58 2.85 paise 106/3 1-57-30 7.45 paise Page 2 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined 2.2 It is the case of the first informant that since his father-in- law and younger brother-in-law are in U.S.A. past couple of years, he is taking care of the properties referred to above. According to him, his father-in-law and the brother-in-law have executed a power of attorney in his favour to manage and take care of the properties.
2.3 It is alleged by the first informant herein that the elder son of Prahladbhai, namely, Nimeshbhai, who is residing at Vadodara created a bogus and concocted power of attorney dated 29th March 2011 purported to have been jointly executed by his father, namely, Prahladbhai and his younger brother Harekrishnabhai with respect to the parcels of land referred to above.
2.4 It is alleged that on 29 th March 2011, both Prahladbhai and Harekrishna were not in India, and therefore, there was no question of executing any such power of attorney.
2.5 It is further alleged that the parcels of land came to be transferred in favour of the accused No.4, namely,Chetanbhai Nipunchandra Amin by virtue of two sale deeds. The two sale deeds are with respect to the land which is running in the name of Prahladbhai and the other set of land running in the name of Harekrishnabhai. It is alleged that the original accused No.1 hatched a conspiracy with the other co- accused and fraudulently transferred the land in question in favour of Chetanbhai and pocketed the money. In such circumstances, the First Information Report dated 25th Page 3 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined March 2015 came to be registered.
3. Mr. Pravin Gondaliya, the learned counsel appearing for the applicant vociferously submitted that the F.I.R. in question is a second F.I.R. and not maintainable in law. He pointed out that for the very same offence, the first informant herein lodged a First Information Report being I-C.R. No.61 of 2014 at the Bodeli Police Station, District: Vadodara Rural and against the very same set of accused persons. It is submitted that the role attributed to the present applicant in the impugned FIR is that he purchased the stamp in his name for execution of the alleged forged power of attorney. Learned advocate Mr. Gondaliya further submitted that it is an inter se property dispute between the family members and the present applicant is the poser of attorney holder of the original land owner. Further, the first informant has also initiated the civil proceedings for cancellation of the sale deed which is pending as on date, and by way of filing the impugned FIR, he has tried to give a criminal texture to purely a civil dispute. It is also submitted that the quashing petition filed by the accused No.4-Chetanbhai Nipunchandra Amin, who is alleged to have purchased the land in question, has already been considered by the then Coordinate Bench of this Court (Coram:J.B. Pardiwala,J.) whereby the impugned FIR has already been quashed qua the accused No.4-Chetanbhai Amin and, therefore, considering the role attributed to the applicant in the FIR which seems to be less graver than the accused No.4- Chertanbhai Amin, the present application deserves to be quashed and set aside. Learned advocate Mr. Gondaliya in the Page 4 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined last submitted that the challenge in the present application is only to the second FIR and it has nothing to do with the previous FIR being I-C.R. No.61 of 2014 registered before the Bodeli Police Station and all consequential proceedings arising out of the same.
4. On the other hand, learned advocate Mr. Maulik Nanavati appearing for the first informant very fairly submitted that in view of the quashment of the impugned FIR in the case of co- accused, he has no objection if the impugned FIR has also been quashed qua the applicant herein, but with a rider that quashment of the impugned FIR would not come in the way of the trial court in deciding the proceedings pending before it pursuant to registration of the earlier first information report as well as in the civil suit filed by the first informant pending before the competent civil court qua all the accused persons. It is submitted that in view of the above as well as considering the statement made by the learned advocate for the applicant, appropriate order may be passed.
5. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the F.I.R. in question could be termed as a second F.I.R. not maintainable in law.
6. The issue on hand has already been very exhaustively dealt with by the then Coordinate Bench of this Court (Coram:
J.B. Pardiwala, J.) vide order dated 23.12.2016 passed in the application filed by the co-accused, namely, Chaitanbhai Page 5 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined Nipunchandra Amin, i.e, the accused No.4 being Criminal Misc. Application No.6454 of 2015, by which, the impugned FIR has been quashed and set aside by the Court qua the applicant therein. The findings recordeds by the then Coordinate Bench are as under;
"9 The Supreme Court in the case of Amitbhai Anilchandra Shah vs. C.B.I. and another [AIR 2013 SC 3794] has considered at length the law on the subject by making a reference of its earlier decisions on the subject which includes T.T.Antony vs. State of Kerala [AIR 2001 SC 2631] as well as Babubhai vs. State of Gujarat and others [2010(12) SCC 254]:
"32. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward Page 6 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined the same with one or more further reports; this is the import of subsection (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that subsection (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case.Page 7 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024
NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions."
33. Mr. Rawal, learned ASG, by referring T.T. Anthony (supra) submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. Learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated, re- affirmed in the following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC
567.
In C. Muniappan (supra), this Court explained Page 8 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined consequence test, i.e., if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR. In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan (supra) as well as in Chirra Shivraj (supra), apply with full force since according to the CBI itself it is the case where:
(i) The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter;
(ii) The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eye witness to the abduction and consequent murders of Sohrabuddin and Kausarbi; and
(iii) Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter. In view of the factual situation as projected by the CBI itself, the ratio laid down by this Court in C. Muniappan (supra), viz., merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one chargesheet could not be filed [See T.T. Anthony (supra)].
35. Learned counsel for the petitioner has placed reliance on the following decisions of this Court which explained same transaction:
i) Babulal vs. Emperor , AIR 1938 PC 130
ii) S. Swamirathnam vs. State of Madras, AIR 1957 SC 340
iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR 1961 Page 9 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined SC 1241
iv) State of A.P. vs. Cheemalapati Ganeswara Rao & Anr., AIR 1963 SC 1850
36. In Babulal (supra), the Privy Council has held that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it.
37. In Swamirathnam (supra), the following conclusion in para 7 is relevant:
"7. On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swamirathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the cast of Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A) and on the cast of Choragudi Venkatadari, In re. ILR 33 Mad 502 (B). These cases are not in point."
In the Bombay case, no charge of conspiracy had been framed and the decision in the Madras case was given before Section 120B was introduced into the Page 10 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined Indian Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction.
38. In Kandimalla Subbaiah (supra), this Court held where the alleged offence have been committed in the course of the same transaction, the limitation placed by Section 234(1) cannot operate.
39. In Cheemalapati Ganeswara Rao (supra), while considering the scope of Section 239 of the old Code (Section 220 in the new Code), this Court held:
"28. The decision of the Allahabad High Court in T.B. Mukherji case directly in point and is clearly to the effect that the different clauses of Section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several parsons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separte trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that Page 11 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some principle."
42. In the case of Babubhai (supra), the very same Bench considered the permissibility of more than one FIR and the test of sameness. After explaining FIR under Section 154 of the Code, commencement of the investigation, formation of opinion under Sections 169 or 170 of the Code, police report under Section 173 of the Code and statements under Section 162 of the Code, this Court, has held that the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to 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 having two or more parts of the same transaction. This Court further held that if the answer is in affirmative, the second FIR is liable to be quashed. It was further held that in case the contrary is proved, where the version in the second FIR is different and is in respect of the two different incidents/crimes, the second FIR is permissible. This Court further explained that in case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. It is clear from the decision that if two FIRs pertain to two different incidents/crimes, second FIR is permissible. In the light of the factual position in the case on hand, the ratio in that decision is not helpful to the case of the CBI."
10 I may also quote with profit a decision of the Supreme Court in the case of Surender Kaushik and others vs. State of U.P. and others, reported in 2013 Cri.L.J. 1570, wherein in paras 13 to 25, the Supreme Court held as under :
"13. For apposite appreciation of the issue raised, it is necessitous to refer to certain authorities which would Page 12 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined throw significant light under what circumstances entertainment of second FIR is prohibited. In Ram Lal Narang (supra), this Court was dealing with the facts and circumstances of a case where two FIRs were lodged and two charge sheets were filed. The Bench took note of the fact that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first one and further the conspirators were different, although the conspiracy which was the subject matter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subject matter of the second case. After adverting to the various facets, it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view, the Court did not find any flaw in the investigation on the basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, came to hold that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code and, therefore, 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 was further observed that 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 Page 13 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code.
15. It is worth noting that in the said case, the two Judge Bench explained and distinguished the dictum in Ram Lal Narang (supra) by opining that the Court had indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It further proceeded to state that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different since the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. Thereafter, the Bench explained thus:
The 1973 CrPC specifically provides for further investigation after forwarding of report under subsection (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs the first and the second is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.
16. In Upkar Singh (supra), a three Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony (supra). The larger Bench took note of the fact that a complaint was lodged by the first respondent therein with Sikhera Police Station in Village Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making certain allegations against the appellant therein and some other persons. On the basis of the said complaint, the police had registered a crime under Sections 452 and 307 of the IPC. The appellant had lodged a complaint in regard to the Page 14 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined very same incident against the respondents therein for having committed offences punishable under Sections 506 and 307 of the IPC as against him and his family members. As the said complaint was not entertained by the concerned police, he, under compelling circumstances, filed a petition under Section 156(3) of the Code before the Judicial Magistrate, who having found a prima facie case, directed the concerned police station to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction, Crime No. 48A of 1995 was registered for offences punishable under Sections 147, 148, 149 and 307 of the IPC. Challenging the direction of the Magistrate, a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge, a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court, following its earlier decision in Ram Mohan Garg v. State of U.P.[10], dismissed the revision. While dealing with the issue, this Court referred to paragraph 18 of T.T. Antony (supra) and noted how the same had been understood:
11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter case is not registrable and no investigation based on the said second complaint could be carried out.
17. After so observing, the Court held that the judgment in T.T. Antony (supra) really does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony (supra) and explained thus:Page 15 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024
NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala has precluded an aggrieved person from filing a counter case as in the present case. To arrive at such a conclusion, the Bench referred to paragraph 27 of the decision in T.T. Antony (supra) wherein it has been stated that a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
Thereafter, the three Judge Bench ruled thus:
In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.
18. Be it noted, in the said verdict, reference was made to Kari Choudhary v. Sita Devi[11], wherein it has been opined that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the same investigating agency. Reference was made to the pronouncement in State of Bihar v. J.A.C. Page 16 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined Saldanha[12] wherein it has been highlighted that the power of the Magistrate under Section 156(3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the Police Act.
19. It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang (supra) and stated thus:
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) also shows that even in cases where a prior complaint is already registered, a counter complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court did not express any opinion either way.
20. Explaining further, the Court observed that if the law laid down by this Court in T.T. Antony (supra) is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.
21. In Pandurang Chandrakant Mhatre (supra), the Court referred to T.T. Antony (supra), Ramesh Baburao Devaskar v. State of Maharashtra [13] and Vikram v.
State of Maharashtra[14] and opined that the earliest Page 17 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.
22. In Babubhai (supra), this Court, after surveying the earlier decisions, expressed the view that 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 in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court expressed the view that the High Court had correctly reached the conclusion that the second FIR was liable to be quashed as in both the FIRs, the allegations related to Page 18 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined the same incident that had occurred at the same place in close proximity of time and, therefore, they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared Page 19 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
11 I may also quote with profit a decision of the Supreme Court in the case of Anju Chaudhary v. State of Uttar Pradesh and another, reported in 2013(3) GLH 237, wherein the Supreme Court held as under:
Page 20 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined "23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.
41.It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
42. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a Page 21 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences committed in the course of the same transaction."
12 What amounts to the 'same transaction' has been very succinctly explained by Hegde, J. (as His Lordship then was) in the case of C.N. Krishna Murthy vs. Abdul Subhan, reported in AIR 1965 Mysore 128. Of course, the term 'same transaction' was interpreted keeping in mind Section 235 of the Code of Criminal Procedure (old Code) corresponding to Section 220 of the Code of Criminal Procedure (new Code). His Lordship observed thus :
"The word 'transaction' is not intended to be interpreted in any artificial or technical sense; commonsense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned, If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case, It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary."
13 Therefore, it is clear, to constitute same transaction, Page 22 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined the series of acts alleged against the accused must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end. It is, therefore, necessary to find out whether the offences alleged against the accused could be stated to be one committed during the same transaction.
14 The law recognizes a common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 Cr.P.C. The expression 'same transaction', from its very nature, is incapable of exact definition (Anju Chaudhary (supra); Mohan Baitha vs. State of Bihar, (2001)4 SCC 350). The distinction between two F.I.Rs. relating to the same incident, and two F.I.Rs. relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai vs. State of Gujarat, (2010)12 SCC 254). The merits of each case must be considered to determine whether a subsequently registered FIR is a second FIR relating to the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and fact depending on the merits of a given case (Anju Chaudhary (supra)). The test, to determine whether two F.I.Rs. can be permitted to exist, is whether the two incidents are identical or not (Ram Lal Narang vs. State (Delhi Administration), (1979)2 SCC 322).
15 The concept of 'sameness' has been given a restricted meaning. In order to examine the impact of one or more F.I.Rs., the Court has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both F.I.Rs. relate to the Page 23 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined same incident and to the same occurrence; and whether they are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. It is only if the second F.I.R. relates to the same cause of action, the same incident, there is sameness of occurrence and an attempt has been made to improvise the case, would the second FIR be liable to be quashed. In cases where every FIR has a different spectrum, and the allegations made are distinct and separate, it may be regarded as a counter complaint, but it cannot be stated that an effort has been made to improve the allegations that find place in the first FIR or that the principle of 'sameness' is attracted. (Babubhai (supra); Surendra Kaushik v. State of Uttar Pradesh, 2013 Cri L.J. 1570).
16 The picture that emerges from the materials on record is as under:
(1) The original accused Nimeshbhai, who happens to be the elder son of Prahladbhai and elder brother of Harekrishna, is alleged to have created a false and concocted power of attorney purported to have been executed by his father and younger brother jointly in his favour.
(2) Prima facie, it appears that the power of attorney is forged and concocted, because both the father and the younger brother on the date of the execution of the power of attorney were not in India.
(3) The power of attorney alleged to be forged and concocted is common so far as the transfer of lands running in the name of Prahladbhai and his younger son Harekrishna is concerned.
(4) Two sales deeds came to be executed by Nimeshbhai in his capacity as a power of attorney in favour of the applicant herein on the very same day and date on the strength of the selfsame power of attorney.
(5) It appears that the allegations levelled in the First Information Report lodged in the year 2014 i.e. IC.R. Page 24 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024 NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined No.61 of 2014 by and large are the same.
(6) The only distinction sought to be drawn by the first informant is that the parcels of land are distinct, because one parcel of land is running in favour of the fatherinlaw, namely Prahladbhai and the other parcel of land running in favour of his younger brotherinlaw, namely Harekrishnabhai.
(7) According to the complainant, the F.I.R. in question i.e. the present one is with regard to the fraudulent transfer of land running in the name of his fatherinlaw. Whereas, the F.I.R. of 2014 is with respect to the fraudulent transfer of land running in favour of his younger brother-in-law.
19 I am of the view that the F.I.R. in question could be termed as a 'second F.I.R' and not maintainable in law. There is definitely commonality in both the F.I.Rs. and they emerged from the very same set of circumstances. It is not possible for me to hold that they do not form part of the same transaction. Both the F.I.Rs. relate to the same incident and to the same occurrence.
20 In such circumstances, the First Information Report being C.R. No.I36 of 2015 registered before the Badoli Police Station, District: Vadodara for the offence punishable under Sections 406, 420, 463, 464, 467, 468, 469, 471 and 120B of the Indian Penal Code deserves to be quashed and is accordingly quashed.
21 The Investigating Officer shall complete the investigation of the First Information Report being IC.R. No.61 of 2014 registered with the Bodeli Police Station, District: Vadodara Rural in accordance with law at the earliest and file an appropriate report in that regard before the Court concerned.
22 It is needless to clarify that the Investigating Officer shall cite both Prahladbhai Ramanbhai Bhagat as well as his younger son Harekrishna Prahladbhai Bhagat as the witnesses if he decides to file chargesheet against the accused persons.
Page 25 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024NEUTRAL CITATION R/CR.MA/6800/2015 JUDGMENT DATED: 27/03/2024 undefined 23 I further clarify that I have otherwise not gone into the question whether the applicant is a bonafide purchaser of the properties for value without notice or not. It is for the trial Court to decide the same on the basis of the evidence that may be led by the parties in the trial.
24 Rule is made absolute. Direct service is permitted."
7. In view of the above, I am of the opinion that for the reasons recorded by the then Coordinate Bench of this Court in Criminal Misc. Application No.6454 of 2015, as quoted above, the present application also deserves to be allowed.
8. In the result, this application succeeds and is allowed. The first information report being C.R. No.I-36 of 2015 lodged before the Bodeli Police Station, Chhota Udaipur is hereby ordered to be quashed qua the applicant herein. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 26 of 26 Downloaded on : Tue Apr 02 20:34:05 IST 2024