Bombay High Court
Jayesh Hareshwar Joshi vs The State Of Maharashtra on 18 September, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
915 BAIL APPLICATION NO.817 OF 2019
JAYESH HARESHWAR JOSHI
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. M. A. Kocharekar h/f Mr. P. D. Kale
Special Public prosecutor: Mr. P. P. Chavan
.....
CORAM : V. K. JADHAV, J.
DATED : 18 th SEPTEMBER, 2019
PER COURT:-
1. The applicant is seeking bail in connection with crime No. I-135
of 2015 registered with Shivaji Nagar police station Beed, District
Beed for the offences punishable under Sections 408, 409, 418, 420,
467, 468, 471, 120-B, 34 of I.P.C. and under Section 13(1) (c), 13(1)
(d) and 13(2) of the Prevention of Corruption Act. His application Exh.
128 in Special (ACB) Case No. 13 of 2017 with similar prayer came
to be rejected by the learned Additional Sessions Judge, Beed vide
order dated 29.4.2019.
2. Heard both sides.
3. It appears that the applicant is on bail in connection with the
crime No. 336 of 2015 registered with Dahisar police station, Mumbai
wherein charge sheet has been submitted before the court prior to
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the filing of the charge sheet in connection with the present crime.
Learned counsel for the applicant has pointed out to me that so far
as the charge sheet submitted in connection with crime No. 336 of
2015 by the State CID, the present applicant is also an accused in
connection with the said crime and so far as his role in connection
with the said crime is concerned, the same transaction is in between
co-accused Ramesh Kadam on one side and Amardeepsingh Sethi
and Ajitsingh Sethi on the other side in respect of plot No. 217/B
sector No.1, CIDCO, Aurangabad has been referred. On perusal of
the charge sheet submitted in connection with the present crime, so
far as the role of the applicant as shown in the charge sheet is
concerned, the said role is also limited to the extent of said
transaction. It is for the applicant to initiate the proceeding for
quashing of F.I.R. and obviously the State would counter the said
proceeding for quashing of F.I.R. as it has been done by the learned
Special Prosecutor while opposing this application. However, it
cannot be ignored that the present applicant in connection with the
crime No. 336 of 2015 came to be released on bail.
4. At this stage, I deem it appropriate to refer two judgments of
the Supreme Court, first in the case of Babubhai vs. State of
Gujarat and others, reported in (2010) 12 SCC 254 and second in
the case of T. T. Antony vs. State of Kerala and others, reported
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in AIR 2001 SC 2637.
5. In the case of Babubhai vs. State of Gujarat and others
(supra) in para 17 of the judgment, the Supreme Court has made the
following observations:-
"17. Thus, in view of the above, the law on the subject
emerges to the effect that an FIR under Section 154
Cr.P.C. is a very important document. It is the first
information of a cognizable offence recorded by the Officer
In-Charge of the Police Station. It sets the machinery of
criminal law in motion and marks the commencement of
the investigation which ends with the formation of an
opinion under Section 169 or 170 Cr.P.C., as the case may
be, and forwarding of a police report under Section 173
Cr.P.C. Thus, it is quite possible that more than one piece
of information be given to the Police Officer In-charge of
the Police Station in respect of the same incident involving
one or more than one cognizable offences. In such a case,
he need not enter each piece of information in the Diary.
All other information given orally or in writing after the
commencement of the investigation into the facts
mentioned in the First Information Report will be
statements falling under Section 162 Cr.P.C.
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
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or more parts of the same transaction. If the answer is
affirmative, the second FIR is liable to be quashed.
However, in case, the contrary is proved, where the
version in the second FIR is different and they are in
respect of the two different incidents/crimes, the second
FIR is permissible. In case in respect of the same incident
the accused in the first FIR comes forward with a different
version or counter claim, investigation on both the FIRs
has to be conducted."
6. In the case of T. T. Anthony vs. State of Kerala, (supra) the
Supreme court in para 18 of the judgment has made the following
observations:-
"18. An information given under sub-section (1) of
Section 154 of Cr.P.C. is commonly known as First
Information Report (F.I.R.) though this term is not used in
the Code. It is a very important document. And as its nick
name suggests it is the earliest and the first information of
a cognizable offence recorded by an officer in charge of a
police station. It sets the criminal law into motion and
marks the commencement of the investigation which ends
up with the formation of opinion under Section 169 or 170
of Cr.P.C., as the case may be, and forwarding of a police
report under Section 173 of Cr.P.C. It is quite possible and
it happens not infrequently that more informations than
one are given to a police officer in charge of a police
station in respect of the same incident involving one or
more than one cognizable offences. In such a case he
need not enter every one of them in the station house
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diary and this is implied in Section 154 of Cr.P.C. Apart
from a vague information by a phone call or a cryptic
telegram, the information first entered in the station house
diary, kept for this purpose, by a police officer in charge of
a police station is the First Information Report - F.I.R.
postulated by Section 154 of Cr.P.C. All other informations
made orally or in writing after the commencement of the
investigation into the cognizable offence disclosed from
the facts mentioned in the First Information Report and
entered in the station house diary by the police officer or
such other cognizable offences as may come to his notice
during the investigation, will be statements falling under
Section 162 of Cr.P.C. No such information/statement can
properly be treated as an F.I.R. and entered in the station
house diary again, as it would in effect be a second FIR
and the same cannot be in conformity with the scheme of
the Cr.P.C."
7. I restrained myself from expressing any opinion as to the
similarity of the allegations made in both the crimes. However,
suffice it to say that one and the same transaction has been referred
as to the role allegedly played by the applicant in connection with the
present crime. Thus, on this ground alone, I am inclined to release
the applicant on bail. Hence, the following order:-
ORDER
I. Application is hereby allowed.
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a) The applicant shall not tamper with the prosecution evidence in any manner.
III. Application is disposed of.
( V. K. JADHAV, J.)
rlj/
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