Gujarat High Court
Yogesh Bhagwandas Patel vs State Of Gujarat on 2 May, 2025
NEUTRAL CITATION
R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025
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Reserved On : 21/04/2025
Pronounced On : 02/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2987 of 2015
With
R/CRIMINAL MISC.APPLICATION NO. 21512 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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YOGESH BHAGWANDAS PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS KJ BRAHMBHATT(202) for the Applicant(s) No. 1
MS VARSHA BRAHMBHATT(3145) for the Applicant(s) No. 1
POOJA H BHARDWAJ(7844) for the Applicant(s) No. 1
MR. SOHAM JOSHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. I have heard learned advocates for the respective parties and learned APP Mr. Soham Joshi for the respondent-State.
2. Since the issues involved in all these two petitions are similar in nature and arise out of connected facts, they were heard together and are being disposed of by this common order. Learned Page 1 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined advocates appearing for the respective parties have independently advanced their submissions, whereas the learned Additional Public Prosecutor has appeared commonly for the respondent-State in all the petitions. The Criminal Miscellaneous No. 2987 of 2015 is treated as the lead matter.
3. The petitioner has prayed for the following reliefs:-
a) Your Lordships may be pleased to admit this petition.
b) Your Lordships may be pleased to allow this petition by quashing and setting aside FIR bearing C.R.No.I-59 of 2014 registered with Icchapur Police Station, Surat in so far as it is against the petitioner;
c) Pending admission and final hearing of this petition, Your Lordships may be pleased to stay further investigation in connection with FIR bearing C.R.No.I-
59 of 2014 registered with Icchapur Police Station, Surat and also stay all further proceedings arising out of the said complaint qua the present petitioner.
BRIEF FACTS:-
4. The respondent No.2 lodged a complaint bearing I.C.R. No. 59 of 2014 before Icchapur Police Station, alleging commission of offences punishable under Sections 409, 420, 465, 467, 468, 471, and 114 of the Indian Penal Code. It was alleged that the Talati-
cum-Mantri, in collusion with the Sarpanch, committed defalcation of public funds by preparing false vouchers between 26.07.2011 and 31.03.2012, pertaining to work carried out in Icchapur Gram Panchayat. Further allegations pertained to the preparation of bogus bills between 09.12.2011 and 29.03.2012.
4.1. It is the petitioner's case that earlier, another FIR being I C.R. Page 2 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined No. 32 of 2014 was registered on 21.08.2014 before the very same police station, alleging identical offences for a different period, namely from 01.04.2013 to 01.02.2014, involving allegations of embezzlement amounting to approximately Rs. 29 lakhs. Pursuant to the registration of I C.R. No. 32 of 2014, the petitioner was arrested, remanded to police custody on multiple occasions, and subsequently granted regular bail by the learned Sessions Court, Surat.
4.2. The present petitions have thus been filed seeking quashment of the second complaint on the ground that it is based on the same incident and is, therefore, not maintainable in view of the settled principles of law.
SUBMISSIONS OF THE PETITIONER:-
5. Learned advocate appearing for the petitioner has principally contended that the first offence was registered at Icchapur Police Station as I.C.R. No. 32 of 2014 (Annexure-B) in respect of an incident, which also forms part of the second FIR being I.C.R. No. 59 of 2014. It is submitted that when the accused were subjected to remand and police custody pursuant to the registration of the first FIR, and had preferred applications for regular bail, the Investigating Officer, during the course of investigation, allegedly found certain further material. However, instead of treating the additional material as part of the investigation in the original FIR, the Investigating Officer erroneously proceeded to register a second FIR in relation to the very same incident.
5.1. It is, therefore, urged that in view of the settled principles of law, the registration of a second FIR based on the same set of facts Page 3 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined is impermissible and violative of the fundamental rights guaranteed under Articles 14, 20 and 21 of the Constitution of India. It is further submitted that the Investigating Officer ought to have continued the investigation in connection with the first FIR and, if additional material was discovered, he was required to either incorporate the same in the ongoing investigation or, if a chargesheet had already been filed, to seek further investigation under Section 173(8) of the Code of Criminal Procedure, 1973, by placing the supplementary report before the competent court.
5.2. However, in the present case, despite the material having emerged during the investigation of the first FIR, a second FIR came to be registered, which is an impermissible course of action in law.
5.3. Learned advocate for the petitioner, while drawing the attention of this Court to the contents of both FIRs, submitted that the second FIR is merely a sequel to the first FIR. It is contended that the material which was discovered during the course of investigation of the first FIR has been erroneously treated as the basis for registering the second FIR, and therefore, the filing of the second FIR is impermissible in law.
5.4. To fortify his submissions, learned advocate for the petitioner placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation, reported in AIR 2013 SC 3794, and submitted that the Court must apply the "consequential test"; and if it is found that the second FIR arises out of or is in continuation of the earlier FIR, then the second FIR is liable to be quashed.
Page 4 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined 5.5. Learned advocate further placed reliance on the judgment in Krishna Lal Chawla and Others v. State of Uttar Pradesh and Another, reported in (2021) 5 SCC 435, and submitted that the registration of a second FIR, apart from being impermissible in law, would amount to a violation of the fundamental rights guaranteed under Articles 14, 20 and 21 of the Constitution of India.
5.6. In view of the foregoing submissions, learned advocate for the petitioner urged that the present petitions be allowed and the second FIR be quashed and set aside.
SUBMISSION OF THE RESPONDENT:-
6. Per contra, learned advocate Ms. Sejal Madavia appearing for respondent No.2 submitted that the material collected during the course of investigation must be subjected to the test of sameness. It is contended that if the two FIRs pertain to the same incident or transaction, then the second FIR may be quashed; however, if there is even a slight variation in the facts or allegations, the second FIR would be maintainable and ought not to be quashed. In support of her submission, learned advocate placed reliance upon the judgment of the Hon'ble Supreme Court in Babu Bhai v. State of Gujarat, reported in (2010) 12 SCC 254, and accordingly urged for dismissal of the petitions.
6.1. Learned APP Mr. Soham Joshi, while adopting the arguments advanced by learned advocate Ms. Madavia for respondent No.2, further placed reliance upon the decision of this Court in Kanaiyalal Sundarji Detroja v. State of Gujarat, rendered in Special Criminal Application No.7756 of 2020, and submitted that the present petitions deserves to be dismissed.
Page 5 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined FINDINGS OF THE COURT:-
7. I have heard the learned advocates for the respective parties and perused the material available on record.
7.1. The core issue arising for consideration before this Court is whether the registration of the second FIR is legally sustainable.
7.2. In order to appreciate the rival contentions advanced by the learned advocates on both sides, it is necessary to first advert to the contents of the first FIR as under:--
"My name is Anilabhai Bhagubhai Patel, aged around - 53 years, occupation - service, resident - D/12, Mahendra Park Society, Jahangirpura, Surat, Mo. No. : 98798 48953.
Having come in person at the police station, I declare and dictate the facts of my complaint that, I stay at the above- mentioned address with my family and I have been serving as a Taluka Panchayat Officer at the Taluka Panchayat Office since 17/03/2014. Namitaben Gunwantbhai Patel, who had previously served as Talati-cum-Mantri in Ichchapore Gram Panchayat, which falls under the jurisdiction of our office, and the then in-charge Sarpanch as well as the present Sarpanch, in collusion with each other during the period from 29/03/2011 to 31/03/2014, by not using the money collected towards property tax and other taxes of the Icchapore Gram Panchayat, which should have been utilised for public welfare with the permission of the superior office and by producing false facts as if the work was carried out and by forging fake and bogus bills and by making fake signatures of the owner/contractor of the even Company, under whose name these bills were issued; and though they were aware of the fact that these bills were fake, they used those bills as the originals. Furthermore, they mentioned some work to have been completed in the Rojmel of Ichchhapore Gram Panchayat without submitting bills or any kind of bases or evidence. Thus, even though the Talati-cum- Mantri, the in-charge Sarpanch, and the then Sarpancha were aware of the fact that they were the responsible public servants, they misused their post and committed of embezzlement of ₹ 28,85,790/- and our office received such 28,85,790/- and our office received such Page 6 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined information on 06/08/2014. Based on that, upon getting confirmation of this fact, pursuat to the investigation carried out by the Taluka Development Officer, Choryasi, based on the report submitted to the District Development Officer regarding this matter, the District Development Officer, District Panchayat Office, Surat, directed in writing on 14/11/2014 to take legal action against the said employee committing embezzlement and the Sarpanch. As I was authorized to file a complaint as per the order dated 25/11/2014 issued by the Taluka Development Officer, Taluka Panchayat, Choryasi, today, I dictate the facts my complaint that, Name of my office mainly there are 42 Gram Panchayats in our jurisdiction. We are entitled with the work to look after the Administrative and Financial aspects of these gram panchayats. As per the rules of Gram Panchayat(Grant for Construction and Development Schemes and possession of Property), whenever any proposal is received for permission of the concerned Gram Panchayat, in that case, we have to approve grant upto Rs. 10,000/- on the basis of legal provisions and on the basis of merits of the work, and for the amount more than that we have to forward the proposal to the higher office, every step has been followed legally. As per rule 6 of the Gram Panchayat (Custody of Gramkund and Investment) Rules, 2000, Talati- cum-Mantri of any gram panchayat shall deposit maximum of Rs. 1000/- in the Nationalised Bank by passing necessary resolution of Gram Panchayat, and whichever works which have been done in the Gram Panchayat. The responsibility to make necessary note about the work in the General Assembly resolution shall be of Talati-cum-mantri. Also as per Rule-4, it is provided that, at the end of every month, Accounts of the Advance receipts and the Balance maintained by the Secretary shall be verified by the Sarpanch, or in his absence, it shall be verified by Deputy Sarpanch and shall issue a Certificate shall be issued for authenticity of the balance for the expenses incurred with the date and signature and debiting it's cost in the Journal against the expense vouchers and to give it it's number and to systematically arrange the vouchers in file. It happened at the relevant time when Talati-cum-Mantri and the in-charge Sarpanch of the Ichhapor village Gram Panchayat was transferred as per government guidelines and rules vide Order No: Ji.V/Establishment 2/Vshi 1009 to 1033/2011 dated 10/06/2011 of Deputy District Development Officer, he resumed duty on 16/06/2011 and got transferred to Dihen vide Order dated 31/01/2014 District Development Officer. During that time, there were elections held in Ichhapor Gram Panchayat, in December-2012, and there were changes in the membership of the Executive Committee of the Panchayat and Page 7 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined Mr. Yogesh Patel took charge as Sarpanch on 16/01/2012.
During the time period from 26/07/2011 to 31/03/2012, despite Talati-cum-Mantri being required to deposit the money of income from Lagora as well as other taxes of Ichhapor Gram Panchayat daily in the bank, he did not deposit the money in bank and by keeping large amount of cash in hand, and fabricated fake and false bills as per below mentioned details :
1) Pramukh Earth Movers - 42 Vouchers From Dt. 09/12/2011 to Dt. 29/03/2012 of Rs. 1,94,850/-
2) N. V. Patel Transport, Icchapore - 37 Vouchers From Dt. 24/06/2012 to Dt. 16/03/2012 of Rs. 3,37,940/
3) Jay Ambe Transport, Icchapore - 22 Vouchers From Dt. 20/01/2012 to Dt. 31/03/2012 Rs. 1,03,850/-
4) K. M. Poriya, Palanpur Tall - Booth - 16 Vouchers From Dt. 13/09/2011 to Dt. 25/11/2011 Rs. 77,600/-
Despite knowing that these bills / vouchers are forged and false, it was treated as true and correct by Talati-cum-Mantri Mrs. Nimita Gunvant Patel and In-charge Sarpanch. Hence, by doing so, they have misused their office and committed financial fraud of Rs. 7,50,240/- by utilizing this amount for their personal purpose.
Moreover, at Ichhchhapore Gram Panchayat, the Talati-cum- Mantri, Mrs. Nimitaben Gunvantbhai Patel, and the Sarpanch, with collusion with each other, during the period from 16/05/2012 to 11/03/2013, the revenue of house tax and incomes from other taxes of the Ichhchhapore Gram Panchayat, despite money had to be deposited in the bank on a daily basis, the said Talati-cum-Mantri, Mrs. Nimitaben Gunvantbhai Patel, did not deposit the said amounts in the bank, retained large amounts of cash in hand, and, during the period from 01/04/2012 to 31/03/2013, she prepared fake and bogus bills, and despite knowing them to be false, she debited Vouchers (Numbers - 31) of bogus bills of Messrs Pramukh Earth Movers in the daily cashbook; however, no numbers were assigned to such vouchers. Against such vouchers, an amount of Rs. 1,40,050/- and, vouchers , in the name of Messrs Pramukh Earth Movers, from 09/04/2012 to 25/03/2013, an income of the Ichchhapor Gram Panchayat amounting Rs. 12,03,000, showed bogus expenditure in the Rojmel without Page 8 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined any vouchers and committed offense of embezzlement of said amount, and in the same way, in order to show bogus expenditure in the Rojmel without any vouchers from 10/04/12 to 13/03/13 in the name of Jay Ambe Transport, Ichchhapor, total amount of Rs. 19,95,500/- thereof including Rs. 7,92,500/- without obtaining any vouchers and Rs. 28,85,790/- of income tax was not used in the public interest by misusing her post and though works in public interest were not done, they have been shown as done. Out of the works which have been shown as completed by (1) Messrs Pramukh Earth Movers, (2) N.V. Patel transport, (3) Jay Ambe Transport and (4) Contractor K.M. Poriya, though they have not done any work, bogus and fabricated bills have been prepared in their name and bogus signatures of owner/ contractor of the company were made therein and huge amount was shown as expenditure in the Rojmel without any bill or voucher and the amount shown as expenditure was used for her personal purposes and thereby committed offense of embezzlement of said amount. Hence, this is my complaint to take legal action against her. My witnesses are those mentioned in the complaint as well as those found during the course of Police investigation."
7.3. The contents of the second FIR is as under:-
"Upon being asked in person, I declare and dictate the facts of my complaint that, I am serving as Talati-cum-Mantri, Kavas Village and In-charge Circle Inspector Bhata Division. As the Taluka Development Officer, Choryashi, Mr. V.C. Bagul authorized me to lodge police complaint against the former Talati-cum-Mantri and Sarpanch, Ichhapor Village for the (embezzlement) of Rs.29,03,400/- from the government money collected at the Gram Panchayat as house tax and other taxes from 01/04/2013 to 01/02/2014 by forging bogus bills and using them as the fair ones to fraudulently use the government money for their personal use, I give my complaint on the basis of the same.
Smt. Nimitaben Gunvantbhai Patel, the former Talati-cum- Mantri of Ichhapor Gram Panchayat and the Sarpanch Shri Yogeshbhai Bhagvandas Patel, during their duty from 01/04/2013 to 09/02/2024, instead of depositing the amount of house tax and other taxes collected at the Ichhapor Gram Panchayat into the Bank on the daily basis as per the rule, kept the money as cash in hand and deposited some of the amount into the Bank and out of the cash in hand amount, forged Page 9 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined bogus bills of Pramukh Earth Movers, Ichhapor, Taluka Choryasi for Rs.24,18,600/-, Twenty Four Lakhs Eighteen Thousand, Six Hundred Rupees for the work of J.C.B. machine and used the said money for their personal use and by committing irregularities have done embezzlement.
Moreover, they have forged bogus bills in the name of Jay Ambe Transport, Ichhapor, Taluka Choryasi for soil work and despite knowing that the said bills are bogus, they have used them as fair ones and have used amount of Rs.4,84,800/- Rupees Four Lakhs Eighty Four Thousand Eight Hundred for their personal use, and thereby they have committed embezzlement of government money.
Therefore, the aforesaid accused persons, namely Nimitaben Gunvantbhai Patel, residing at Vishalnagar Society, Gujarat Gas Circle, Adajan, Surat, Talati-cum-Matri, despite being a government employee and Shri Yogeshbhai Bhagavandas Patel, residing at Ichhapor Village, Taluka Choryasi, Dist. Surat while on the post of the Sarpanch, forged bogus bills of Pramukh Earth Movers Ichhapor, Taluka Choryasi for Rupees 29,03,400/- Twenty Nine Lakhs Three Thousand Four Hundred Rupees, from the tax revenue of the House Tax and other taxes collected at Ichhapor Grampanchayat from 01/04/2013 to 01/02/2014 in collusion with each other, during their duty and did not execute the said works and by showing the soil work of Jay Ambe Transport, Ichhapor and not doing the same, forged large bogus bills regarding the same and despite knowing that the same are bogus, used them as fair ones. Therefore, I give complaint against them for necessary action. My witnesses are the owners and employees of Pramukh Earth Movers, Ichhapor and Jayambe Transport and other witnesses that comes out during the police investigation."
7.4. The learned advocate for the petitioner has placed reliance upon the judgment rendered in Amitbhai Anilchandra Shah (supra) to contend that where the incidents arise out of the same transaction, the registration of a second FIR is impermissible.
7.5. In support of his submissions, learned advocate for the petitioner has placed reliance upon paragraph 32 of the aforesaid judgment, which reads as under:-
Page 10 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined "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 the same with one or more further reports; this is the import of sub-section (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 Page 11 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub- section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of 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."
7.6. Recently, the Hon'ble Apex Court, in the case of State of Rajasthan v. Surendra Singh Rathore, reported in 2025 INSC 248, examined the issue after surveying various authorities and judicial pronouncements, and also recorded that, over the years, through judicial interpretation, a degree of flexibility has been recognized. The issue before the Apex Court was whether the registration of a subsequent FIR is legally permissible. Paragraphs 6 to 8.6 of the judgment read as under:--
"6. We have heard learned counsel of the parties and perused the written submissions filed. The sole question for our consideration is whether the registration of the subsequent FIR is legally permissible and whether the High Court was correct in exercising its inherent powers in quashing the same.Page 12 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025
NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined
7. We find that a judgment of this court titled T.T. Antony (supra) records the position that a second FIR is not maintainable. The relevant extract is as under :
"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 sub-section (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 [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a countercase, 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."
8. This Rule, however, over the years through judicial pronouncements, has lent some flexibility. Reference may be made to:
8.1. In Anju Chaudhary v. State of U.P.,6 this Court dealt with the concept of a second FIR at length. We may reproduce with profit certain observations as under :
"14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officerin-charge of a police station. This implies that there has to be the first information report about an incident which constitutes a Page 13 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, 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, re-examination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, reinvestigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. (Ref. Reeta Nag v. State of W.B. [(2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] and Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762] of the same date.)"
(Emphasis supplied) 8.2. In Kari Choudhary v. Sita Devi7 this Court held :
"11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a Page 14 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is 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 on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it."
(Emphasis supplied).
8.3. The position regarding the second FIR has been clarified by a Three-Judge Bench of this Court in Upkar Singh v. Ved Prakash.8 The relevant discussion made in the judgment is extracted herein below for ready reference :
"21. From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] 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 [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] 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 [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] is in the same line as found in the judgments in Kari Choudhary [(2002) 1 SCC 714 : 2002 SCC (Cri) 269] and State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 :
AIR 1980 SC 326] . However, it must be noticed that in T.T. Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , Ram Lal Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] was noticed but the Court did not express any opinion either way.Page 15 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025
NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined
23. Be that as it may, if the law laid down by this Court in T.T. Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] 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 [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] 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."
(Emphasis supplied) 8.4. In Babubhai (supra), it was observed that :
"21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is 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 the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted."
(Emphasis supplied) 8.5. In Nirmal Singh Kahlon v. State of Punjab9 this Court held in the following terms that when a new discovery is made, the second FIR would be maintainable. It was said as follows :
"67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police Page 16 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."
(Emphasis supplied) 8.6. Apart from these judgments, reference can also be made to Ram Lal Narang v. State (Delhi Admn.);10 Surender Kaushik v. State of U.P.;11 and P. Sreekumar v. State of Kerala.12"
7.7. After referring to the conspectus of the aforesaid judgments, the Hon'ble Apex Court delineated the following principles regarding the permissibility of registering a second FIR, which are as follows:--
"9. From the above conspectus of judgments, inter alia, the following principles emerge regarding the permissibility of the registration of a second FIR:
9.1. When the second FIR is counter-complaint or presents a rival version of a set of facts, in reference to which an earlier FIR already stands registered.
9.2. When the ambit of the two FIRs is different even though they may arise from the same set of circumstances.
9.3. When investigation and/or other avenues reveal the earlier FIR or set of facts to be part of a larger conspiracy.
9.4. When investigation and/or persons related to the incident bring to the light hitherto unknown facts or circumstances.
9.5. Where the incident is separate; offences are similar or different."
7.8. What is noteworthy is that if the ambit of the two FIRs is distinct, even if they arise from the same set of circumstances, the registration of the second FIR is permissible. If the incidents are Page 17 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025 NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined separate, the offences may be similar or different, yet the registration of the second FIR remains permissible. The argument and facts for non-maintainability of the second FIR must pass through the test of "sameness." If both FIRs pertain to the same incident, the same occurrence, or incidents that form part of a single transaction, then the second FIR is not permissible. However, when the version in the second FIR differs, or when the incidents are separate, or if the ambit of avenue the FIRs differs, the second FIR is permissible.
7.9. Thus, the principle is crystal clear: when the version in the second FIR differs, and the ambit also differs, the accused cannot claim that the second FIR is not maintainable.
7.10. Turning to the facts of the case, in the first FIR, i.e., I.C.R. No. 32 of 2014, as stated hereinabove, the first informant is different from the first informant in the second FIR. The time period for the alleged offence in the first FIR spans from 1.4.2013 to 1.2.2014, and it is alleged that the accused siphoned off the amount of house tax and other local taxes received by Icchapur Gram Panchayat, amounting to Rs. 29,03,402/-, by preparing false and fabricated documents for personal gain.
7.11. In the second FIR, the alleged time period is from 29.3.2011 to 31.3.2014, prior to the incident mentioned in the first FIR. The amount allegedly siphoned off in the second FIR is Rs. 28,85,790/-, with the allegation that Patel Transport and Jayambe Transports did not carry out the work, and false yet fabricated bills were prepared to misappropriate the aforementioned amount.Page 18 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025
NEUTRAL CITATION R/CR.MA/2987/2015 CAV JUDGMENT DATED: 02/05/2025 undefined 7.12. What can be noticed is that the ambit of the two FIRs is different. Even incidents are different, investigation avenues are different. Applying test of "sameness" and "test of consequence", both FIRs found not part of the same incident.
7.13. In view of the foregoing, the arguments advanced by the learned advocate for the petitioner fail to pass the test of "sameness" and the "test of consequence" as analyzed above. The two FIRs have different objectives and involve distinct incidents, and cannot be regarded as sequels to each other, nor can the second FIR be considered part of the first FIR.
7.14. As far as the judgment relied upon by the learned advocate for the petitioner is concerned, there is no dispute that if the second FIR arises from the same incident as the first, its registration would be violative of Articles 14, 20 and 21. However, in the present case, as discussed above, and upon comparing both FIRs, it is evident that they do not relate to the same incident, nor are they two different parts of a single incident. Therefore, the judgments cited by the learned advocate for the petitioner do not assist his case.
ORDER:-
8. In view of the detailed discussions and for the reasons set forth above, the Court finds no merit in the contentions raised by the petitioner. Both petitions are, therefore, DISMISSED. Interim relief discontinued. Notice/Rule stand discharged.
(J. C. DOSHI,J) MANISH MISHRA Page 19 of 19 Uploaded by MANISH MISHRA(HC01776) on Fri May 02 2025 Downloaded on : Sat May 03 18:39:59 IST 2025