Gujarat High Court
Ashokbhai Khodidas Chalodiya vs State Of Gujarat & on 17 March, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/16490/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 16490 of 2014
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R/CR.MA/16490/2014 CAV JUDGMENT
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ ASHOKBHAI KHODIDAS CHALODIYA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1 MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 M/S. LB DABHI AND AN SHAH, ASSISTANT PUBLIC PROSECUTORS for the Respondent - State of Gujarat.
MR RS SANJANWALA, SR.ADVOCATE with M/S. DIPEN DESAI AND HARDIK A.DAVE, ADVOCATES for the Respondent No.2. ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 17/03/2015 Page 2 of 34 R/CR.MA/16490/2014 CAV JUDGMENT COMMON CAV JUDGMENT Since the question of law raised in all the captioned applications is the same, those were heard analogously and are being disposed of by this common judgment and order.
The applicants herein, original accused, seek to challenge the legality and validity of the action of the police in registering different FIRs for the same offence alleged to have been committed in connection with the same transaction.
According to the applicants, the First Information Report being C.R.No.I-26 of 2014 came to be registered with the DCB Police Station against the applicants herein for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code. A person by name Shamjibhai Ranchhodbhai Dabhi, residing at Surat, lodged the report alleging that he was cheated by the applicants.
The case of the first informant so far as C.R. No.I-26 of 2014 is concerned, is that he is dealing in the business of purchase and sell of land for the purpose of development. He has floated a company in the name of Blazin Infrastructure Developers. Blazin Infrastructure Developers is a partnership firm which includes nine partners. The registered office of the first informant is at Mumbai and one of the branches is situated at Surat.
It is alleged that one of the accused persons, namely, Nareshbhai Gigabhai Dudhat, approached the first informant introducing himself as the Director of Tirth Oil Mills Company. He also represented before the first informant that he was Page 3 of 34 R/CR.MA/16490/2014 CAV JUDGMENT dealing in the business of land and owns land admeasuring 32000 sq.mtrs. bearing Survey No.214 at Rampuriya Industries Ltd., near Dadra Check Post, Selvas. He represented before the first informant that he wanted to sell 10% of the land. He is alleged to have shown few documents in that regard to the first informant.
It is the case of the first informant that the accused was not the original owner of the land and neither he had shown genuine documents in that regard. On account of willful and false representation made by the accused before the first informant, the first informant decided to purchase 10% of the land for a total sale consideration of Rs.2,55,00,000=00. It is also the case of the first informant that an amount of Rs.2,55,00,000=00 was paid by issuing three cheques bearing nos.108265, 108266 and 108267 dated 17 th June 2013 for the sum of Rs.90 lac, Rs.90 lac and Rs.75 lac respectively. It is alleged that no sooner the amount was credited in the account of the accused, then the same was withdrawn. After withdrawing the amount, the accused fled away, and despite trying to contact the accused, there was no response at all, at his end. It appears that this is how the FIR originated against the accused, namely, Nareshbhai Gigabhai Dudhat and the other co-accused. It also appears that at the end of the investigation, charge-sheet was filed against Nareshbhai Gigabhai Dudhat and the other co-accused, namely, Ashokbhai Khodidas Jalodiya.
At a later stage, four more FIRs came to be registered i.e. C.R.No.I-52 of 2014 at the Sarthana Police Station, Surat; C.R.No.I-162 of 2014 at the Varachha Police Station, Surat;Page 4 of 34 R/CR.MA/16490/2014 CAV JUDGMENT
C.R.No.I-209 of 2014 at the Varachha Police Station; Surat; C.R.No.I-167 of 2014 at the Khatodara Police Station; and C.R.No.I-281 of 2014 at the Kamrej Police Station. All these FIRs came to be lodged by different individuals for the offence under Sections 406, 420 and 120-B of the Indian Penal Code.
It is the case of the applicants that after the registration of the FIR i.e. C.R.No.I-26 of 2014 with the DCB Police Station, the subsequent FIRs should not have been registered by the police, as the same are in connection with the very first transaction and the alleged offences are a part of the same conspiracy. Once the conspiracy is common, the subsequent registration of the FIRs is not tenable in law. This appears to be the sum and substance of all these applications.
Mr.Mangukiya, the learned counsel appearing for the applicants, vehemently submitted that the modus operandi adopted by the police is to register multiple FIRs at different police stations and obtain custody of the applicants. He submitted that the police officers who are investigating into the different FIRs are dishonestly arresting the applicants although there are no specific allegations made against them. The principal argument of Mr.Mangukiya is that when the case of the prosecution in each of the cases is of a large scale conspiracy resulting into cheating with more than 300 people and collection of about Rs.300 crore, the subsequent FIRs could not have been registered in relation to the same transaction.
Mr.Mangukiya has placed strong reliance on the following decisions of the Supreme Court.Page 5 of 34 R/CR.MA/16490/2014 CAV JUDGMENT
(i) T.T.Antony v. State of Kerala & others, AIR 2001 SC 2631;
(ii) Babubhai v. State of Gujarat & others, 2010(12) SCC 254;
(iii) Amitbhai Anilchandra Shah v. C.B.I. & another, AIR 2013 SC 3794 Mr.Mangukiya submitted that when it is the stance of the investigating agency that all acts have been done in furtherance of the larger conspiracy, then in such circumstances, the subsequent events of cheating would be a part and parcel of the same transaction for which the second FIR is not permissible. He submitted that such is the view taken by the Supreme Court in the above referred decisions.
On the other hand, these applications are vehemently opposed by Mr.A.N.Shah, the learned APP appearing for the State and Mr.R.S.Sanjanwala, the learned senior advocate appearing for one of the first informants. He submitted that these applications are totally misconceived. According to them, each offence is a distinct offence and there is no element of sameness in the same. They submitted that if two FIRs pertain to two different incidents/crimes, the second FIR is definitely permissible. Both the learned counsel have placed strong reliance on the decision of the Supreme Court in the case of Anju Chaudhari v. State of Uttar Pradesh & another, reported in 2013(6) SCC 384, wherein the Supreme Court has taken the view that whether more than one FIR is permissible or not is a mixed question of law and fact. The test of "sameness" should be applied. Whether different offences are committed in course of the same transaction or not, should be gathered from the circumstances of the case. The two counsel Page 6 of 34 R/CR.MA/16490/2014 CAV JUDGMENT submitted that the facts in each of the FIRs are different, the first informants are different, the properties are different, the transactions are different. The sole consideration cannot be the modus operandi. In a given case, by a common modus operandi, a person may cheat many individuals but that does not mean that there cannot be more than one FIR.
It is submitted by the learned APPs and Mr.Sanjanwala that there being no merit in any of the applications they deserve to be rejected outright.
Having heard the learned counsel appearing for the respective parties and having gone through the materials on record, the only question that falls for my consideration is, whether the applicants are entitled to any of the reliefs prayed for in these applications.
At this stage, I deem it necessary to look into the affidavit filed by the Police Inspector, Crime Branch, Surat city. I may quote few relevant paragraphs of the affidavit :
"5. I say and submit that the respondent no.2 herein viz., Shamjibhai Ranchhodbhai Dabhi is dealing in business of purchase and sell and also for the development of the land, for which, they have constituted one development company viz., Blazin Infrastructure Developers, in which, there are total nine partners including the complainant. That, the registered office of the respondent no.2 is at Mumbai and one branch is situated at Surat City. I further say and submit that with malafide intention, the original accused viz., Nareshbhai Gigabhai Dudhat disclosing himself as Director of Tirth Oil Mills Co. came to the office of the respondent no.2 and told that he is also dealing in land business and is having land admeasuring 32000 sq.mtrs. situated at survey No.214 at Rampuriya Industries Ltd., Page 7 of 34 R/CR.MA/16490/2014 CAV JUDGMENT Dadra Check Post, Selvas, out of which, he wants to sell 10% land and, thereafter, he showed the documents and won the trust of the respondent no.2. It is, however, submitted that the said original accused was not the original owner of the said land nor he has produced the original/genuine documents to the respondent no.2. I say and submit that it was decided the purchase the said land for sale consideration of Rs.2,55,00,000/-. I further say and submit that since the respondent no.2 wanted to purchase the said land, he entered into the sale transaction by way of payment of Rs.2,55,00,000/- (Rs.90,00,000/- by way of cheque No.108265 dated 17.06.2013, Rs.90,00,000/- by way of cheque no. 108266 dated 17.06.2013 and Rs.75,00,000/- by way of cheque no.108267 dated 17.06.2013). I further say and submit that on deposit of the said cheques, the accused have withdrawn the said amount and fled away and, thereafter, when the respondent no.2 has tried to contact the accused, he did notreceive any proper response and on proper verification, it was learnt to the respondent no.2 that he was cheated by the accused in connivance with each other and thereby they have duped by the sale consideration of the respondent no.2. I further say and submit that as soon as the respondent no.2 came to know about the said fact, he submitted a written application dated 03.04.2014 to the office of the Commissioner of Police, Surat and upon submission of the said application, the investigation was being carried out and, thereafter at the end of said inquiry, it was found that the offence is made out against the accused persons, the impugned FIR cam to b lodged against the accused persons on 10.06.2014 for the offences punishable under Sections 406, 420, 465, 467, 468, 471 etc. of the Indian Penal Code. I say and submit that after registration of the impugned FIR against the accused, the investigation was again put into motion and at the end of investigation, the chargesheet came to be filed before the competent court against the accused.
6. I say and submit that the applicant has made averments and contentions about the fact that no second FIR is permissible as the contents of FIRs filed by various complainants before various Police Stations. It is however, submitted that the said contentions are not tenable in eye of law in view of the fact that the accused persons including the applicant are involved in similar Page 8 of 34 R/CR.MA/16490/2014 CAV JUDGMENT types of offences in a sequence and they have duped so many persons in such a manner. I further say and submit that as stated by the applicant in the present application, there are other FIRs filed by various complainants before various Police Stations. In response to this, I say and submit that the accused, after disclosing themselves as land brokers or dealing in land business, have given some attractive offers to the innocent persons to invest their money and thereby obtained huge amount from the innocent persons in lacs and thereafter they have not given the said amount to the said persons back and thus, they have absorbed the said amount with malafide intention. I, therefore, say and submit that since the accused have cheated other persons also, they have come forward and lodged the aforesaid offence, in which also, there are time, place and place of offence are different and contents of the said FIR are also different and, hence, it cannot be said that the other FIRs bare bear similar allegations and contentions. I, however, say and submit that the complainants of each FIR are also different and not the same person.
7. I further say and submit that FIRs lodged against the accused are annexed with the application by the applicant and, hence, bare reading of the contents of the said FIRs at different Police Station, it is clearly evident that the transaction between all the complainant and the accused are different and assurance given by the applicant for the accused are different. I further say and submit that the offence is not continued offences from the first FIR but there are different money transactions, but the modus operandi is same. I, therefore, say and submit that it cannot be said that for the same subject matter, second FIR is not permitted. However, in the instant case, different individuals have been cheated by the accused and the transactions are not arising from one FIR to another FIR. I further say and submit that as stated above, the accused are indulging into such activities of duping innocent persons in a sequence and, hence, different FIRs at different Police Station are lodged by the victims.
12. At this stage, I say and submit that in past also, similar type of offence has occurred in case of one Ashok Jadeja, wherein the said accused has cheated number of persons by giving attractive scheme known as "Ek Ka Page 9 of 34 R/CR.MA/16490/2014 CAV JUDGMENT Tin", for which, different persons (victims, who are duped) have filed different FIRs, which has gone upto the Hon'ble Supreme Court, at that time also, the Hon'ble Supreme Court has also stated that the transactions are different and, hence, it cannot be said to be second FIR and, hence, all said FIRs have been investigated by different Police Stations and, thereafter, different chargesheets before different Courts are also filed.
13. I say and submit that in connection with different FIRs lodged against the applicant and other accused persons, they have approached this Hon'ble Court by way of filing different quashing petitions, however, in none of those quashing petitions, this Hon'ble Court has granted any relief in favour of the accused persons looking to the gravity of the offence and manner in which the said offence is committed. I, therefore, say and submit that in the present case also, the applicant is having similar footing because he is involved in such activity and has duped so many persons. Hence, the investigation may be permitted to be carried out without granting any relief.
14. I further say and submit that the accused persons are indulging into such type of activities of duping innocent persons in a sequence and there is possibility of duping other persons, who are not still come forward to lodge complaint against them because of the fear. I further say and submit that the accused are involved in huge scam, which is in crores and, hence investigation is required to be made in view of the fact that the accused have cheated number of persons by disclosing their wrong identity."
Along with the affidavit a chart has been provided specifying the C.R. number, name of the complainant and the role of the accused.
C.R.No. Name of Role of the accused and status of Complainant the case.
I-26/2014 Shamjibhai Accused No.(1) Nareshbhai Geegabhai Ranchhodbhai Dudhat, Residing at 7, Priyanka Row DCB Police Dabhi. House, Near Dharmanand Society, City Page 10 of 34 R/CR.MA/16490/2014 CAV JUDGMENT Station. light Road, Mota Varachha, Surat.
Residing at D- Native Village: Sarbhada, Dist: Amreli.
(Sec.406, 404, Divyam 420, 465, Residency, Accused No.(2) Ashokbhai Khodidas
467, 468, Near Karnavati Chalodiya, Residing at 37, Dharmistha 471, 120-B Society, Park Society, Near Patel Samaaj Vaadi, IPC. Dabholi Road, Mini Bazar, Varachha, Surat.
Surat. Native Village: Khabda, Ta: Barwaada, Dist: Ahmedabad.
(1) Both the accused were business partners in purchase and sell of land and property.
(2) Accused No.1 first time made contact with the complainant through his cousin, namely, Paresh Chalodiya, and showed him the land located at Selvas bearing Survey No.214 and presented that the said land is owned by his partner Naresh Dudhat. Ashok Chalodiya gave trust and confidence to the complainant to purchase the above land and sent Naresh Dudhat at complainant's office.
(3) Accused no.1 Naresh Dudhat made deal to sell 10% of above land at Rs.2.5 crore to the complainant.
(4) As per the deal, payment of 10% land was paid by cheque in Naresh Dudhat's bank account which cheques were received by Ashok Chalodiya which amount was withdrawn by Naresh Dudhat.
(5) The sale deed was taken by Ashok Chalodiya and through im it was signed by Naresh Dudhat as such Naresh Dudhat signed the above sale deed.
Note: Charge-sheet has been filed on both accused.
I-52/2014 Jigneshbhai 1) Nareshbhai Geegabhai Dudhat, Aged Himmatbhai 32 years, residing at: 7, Priyank Sarthana Gajera. Residency, Beside Anmol Row House, Police City Light Road, Mota Varachha, Surat, Station. Residing at:20, was having office at: 205, Shubham Ramdevnagar Doctor House, Nr. Sarthana Jakatnaka (Sec.406, Society, and started companies in the name of 420, 409, Simadagam, (1) Chitrxa Media Private Limited, 114 IPC. Surat. (2)Mango Marketing Pvt. Ltd., (3) Raw Page 11 of 34 R/CR.MA/16490/2014 CAV JUDGMENT Infrastructure Pvt. Ltd., (4) Pragna Media Pvt.Ltd.,(5) Sukhoda Builders Pvt. Ltd. (6) Vardhman Trade Links Pvt. Ltd., (7) Paydhuni Agro Food Processing Pvt. Ltd., (8) Lomasa Infrastructure Pvt. Ltd., (9) New Empire Infrastructure Pvt. Ltd., (10) Reni Fashion, (11) Tirth Fashion, (12) Shree Aqua Purifier Pvt. Ltd. in year 2012 and by tempting complainant to invest in the land and property in the companies which are shown above, the complainant invested Rs.34,50,000/- by way of cheque and cash. The accused was arrested on 3/8/2014 at 17.30 hrs.
2) The accused Nayankumar Chhaganbhai Sutariya, Aged: 32 years., Residing at A/2, 102, Varniraj Apartment, Sathana Jakatnaka, Surat, Originally residing at: Jamdadar, Ta:
Jamkandona, Dist: Rajkot has withdrawn Rs.10,00,000/- from the account No.50076767127 of Allahabad Bank, Nanpura Branch, Surat.
3) The accused Alkeshkumar Chhaganbhai Sutariya, Aged: 28 yrs., Occ: Service, Residing at: A-2, 102, Varniraj Apartment, Sarthana Jakatnaka, Surat, Originally Resi. Jamdadar, Ta:
Jamkandona, District Rajkot has withdrawn Rs.5,00,000/- on different date for personal use from account No.50043533991 of Allahabad Bank, Nanpura Branch, Surat. The accused nos.2 and 3 were arrested on 27/10/2014 at 12.00 noon and released as per order dated 16/10/2014 of bail application no.15034/2014 of Hon'ble Gujarat High Court on bond of Rs.10000/-.
4) Ashokbhai Khodidasbhai Chalodiya, Aged: 40 yrs., residing at: 37, Dharmishtha Park, Mini Bazar, A.K.Road, B/h.Patel Samaj Wadi, Varachha, Surat.
Originally Resi.at:Khambhda, Ta:
Barwala, Dist: Ahmedabad was arrested on 27/8/2014 at 21.30 hrs. H invested in the property with accused Naresh Dudhat in partnership.Page 12 of 34 R/CR.MA/16490/2014 CAV JUDGMENT
The above accused have gave trust and confidence to the complainant and issued cheques in the name of Tirth Fashion of Allahabad Bank, Punjab National Bank, Bank of Baroda with support of each other. The said cheques were bounced and the accused did not refund the amount of Rs.34,50,000/- to the complainant, thereby committed offence of breach of trust, cheating etc. I-162/2014 Ratilal The accused (1) Khodidas Dharamshi Dahyabhai bhai Chalodiya, (2) Naresh Gigabhai Varachha Korat. Dudhat, (3) Ashokbhai Khodidas Police Residing at: Chalodiya, (4) Sanjaybhai Khodidas, (5) Station. House No.119, Brijesh Ashokbhai Chalodiya, (6) Harsh Mahavir Sanjaybhai Chalodiya - out of them (Sec.406, Society, Opp: accused nos.1, 2, 3 had pre-
420, Varachha planned/hatched a conspiracy and gave 506(2), Chowpaty, temptation and inducement to the 120(B) of Near complainant and the witnesses to invest IPC Shyamdham money in land/property in 1 or 2% and Chowk, get huge amount with profit. The Varachha, accused prepared a bogus scheme and Surat collected amount of Rs.4,47,49,000/- by way of investment from the complainant and the witnesses. The accused no.1 gave a diary and did not return the amount to the complainant and the witnesses and gave threats to kill the complainant and witnesses, had they asked for money. Thus the accused committed breach of trust and cheating.
Charge-sheet has been filed against accused no.2 Naresh Dudhat and accused No.3 Ashok Chalodia on 7/9/2014.
I-209/2014 Batukbhai The accused Khodidas Dharamshibhai Virjibhai Chalodiya and Naresh Gigabhai Dudhat Varachha Dobariya. and Ashokbhai Khodidas Chalodiya had Police Residing at: hatched a conspiracy and gave Station. H.No.B/12, inducement to the complainant to the Laxmannagar effect that if he invests for 185000 yard (Sec.406, Soc., Kapodra, open land at Ankleshwar GIDC @ 1.5% 420, 120-B Surat. for ten months, he would get IPC Rs.31,50,000/- profit. The accused nos.1 & 3, by giving such assurance and confidence, collected Rs.57,00,000/- from the complainant and the accused no.1 gave diary regarding acceptance of the amount and thereafter did not return Page 13 of 34 R/CR.MA/16490/2014 CAV JUDGMENT the amount to the complainant and committed breach of trust and cheating.
Charge-sheet has been filed against accused no.2 Naresh Dudhat and Accused No.3 Ashok Chalodia on 18/10/2014.
I-67/2014 Maganbhai Brief particulars: The fact of the offence Karshbhai Patel as such that, on Dt. 15/9/2013 the Khatodara Resi.at: House accused Khodidasbhai and his son Police No.59, Ashokbhai had decided that accused Station. Shyamkrushna Nareshbhai Dudhat and Ashokbhai Soc., Citylight Chalodiya had shown the disputed land (Sec.406, Road, Mota situated at VIP Road to the complainant. 420, 120-B Varachha, The accused Khodidasbhai called the IPC. Surat City. complainant at his home and accused Ashokbhai's brothers Sanjay Khodidas Chalodiya, Brijeshbhai Chalodiya and Harsh Sanjay Chalodiya and Naresh Dudhat went in Hyundai Aletra car showed the open land opposite to Maniba Party Plot, VIP Road and Naresh Dudhat took responsibility to clear all the disputes related to the said land.
Thereafter the complainant and his group decided to purchase the said land and asked Khodidasbhai for the papers of the said land who told that the papers were with Naresh Dudhat and he was out of City and the papers would be given to them when he would arrive.
Khodidasbhai and Ashokbhai had called the complainant and his group witnesses Ghanshyambhai, Rasikhbhai and Bipinbhai at his house where Ashokbhai, Sanjaybhai and his grandsons were present and the complainant paid Rs.1 crore to the accused against the land shown at VIP Road. The accused accepted the amount and pre-
planned/hatched a conspiracy and committed breach of trust and cheating.
Total 6 accused are named in the FIR for the said offence. The role of accused is as under :
1) Khodidasbhai Dharamshibhai Chalodia informed the complainant regarding disputed land situated at VIP Road.
Ashok Chalodiya was also present at that time and the token amount of Rs.1 crore was taken at his home and he was Page 14 of 34 R/CR.MA/16490/2014 CAV JUDGMENT present at that time.
2) Ashok Khodidasbhai Chalodiya went to show the disputed land to the complainant and the amount of Rs.1 crore was taken at his home and he was present at that time.
3) Sanjay Khodidasbhai Chalodiya went to show the disputed land to the complainant and the token amount of Rs.1 crore was taken at his home and he was present at that time.
4) Brijesh Khodidasbhai Chalodiya went to show the disputed land to the complainant and the token amount of Rs.1 crore was taken at his home and he was present at that time.
5) Harsh Sanjaybhai Chalodiya went to show the disputed land to the complainant and the token amount of Rs.1 crore was taken at his home and he was present at that time.
6) Naresh Dudhat is a partner of the accused Khodidasbhai and he had also gone to show the said land and stated that the said land is of tribal and disputed one and that he took the responsibility to clear it.
At the time of payment of Rs.1 crore to the accused three witnesses of the complainant group, namely, (1) Ghanshyambhai Jivrajbhai Maroliya, (2) Bipinbhai Valjibhai Bhatiya and (3) Rasikbhai Vitthalbhai Rudkiya were present at the house of Khodidasbhai.
I-281/2014 Kantibhai (1) The accused of this matter Naresh Khodabhai Gigabhai Dudhat, resi.at: 7, Priyanka Kamrej Bajariya. Residency, Beside Anmol Row House, Police Resi.at: 84, Citylight Road, Mota Varachha, Surat Station. Anand Park informed the complainant that there is a Society, golden opportunity of earning by (Sec.406, Sarthana investing money in land. By giving 420, 114, Jakatnaka, assurance and gaining confidence and 504, 506(2) Surat. trust, got Rs.3,00,00,000/- invested from IPC the complainant. On Asking by the complainant to give the money back invested by him, the accused abused the complaiant and gave threat to kill etc. Page 15 of 34 R/CR.MA/16490/2014 CAV JUDGMENT and thereby the accused committed offence.
(2) Rameshbhai Haribhai Kanani was working in the Office of Nareshbhai Dudhat who opened the bank account in his name and deposited Rs.3,00,00,000/- in the same. Rameshbhai was arrested as co-accused to support the accused.
(3) Ashokbhai Khodidas Chalodiya gave Rs.1,20,00,000/- to Nareshbhai for investment. He is arrested as per confession of Nareshbhai Dudhat.
The accused nos.1 and 3 are in jail, the accused no.2 is released on bail. The charge-sheet has been filed against them.
I may now look into the decisions which have been relied upon by the learned counsel appearing for the applicants.
The Supreme Court in the case of Amitbhai Anilchandra Shah (supra) 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 (supra) as well as Babubhai (supra).
"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 Page 16 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 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 Page 17 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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.
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:
Page 18 of 34 R/CR.MA/16490/2014 CAV JUDGMENT1. 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 "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)].Page 19 of 34 R/CR.MA/16490/2014 CAV JUDGMENT
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 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 Page 20 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 120-B was introduced into the 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 Page 21 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 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 Page 22 of 34 R/CR.MA/16490/2014 CAV JUDGMENT decision is not helpful to the case of the CBI."
I may also quote with profit a decision of the Supreme Court in the case of Surender Kaushik and others v. 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 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 Page 23 of 34 R/CR.MA/16490/2014 CAV JUDGMENT not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the 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 sub- section (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 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 Page 24 of 34 R/CR.MA/16490/2014 CAV JUDGMENT investigate the same and submit a report. On the basis of the said direction, Crime No. 48-A 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:-
"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.Page 25 of 34 R/CR.MA/16490/2014 CAV JUDGMENT
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. 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 Page 26 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 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 encyclopaedia 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 PW-5 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 Page 27 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 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 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 Page 28 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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."
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 :
"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 Page 29 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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 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"."
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 v. 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 Page 30 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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."
Therefore, it is clear, to constitute "same transaction", 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.
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 Page 31 of 34 R/CR.MA/16490/2014 CAV JUDGMENT very nature, is incapable of exact definition (Anju Chaudhary (supra); Mohan Baitha v. State of Bihar, (2001)4 SCC 350). The distinction between two FIRs relating to the same incident, and two FIRs relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai v. 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 FIRs can be permitted to exist, is whether the two incidents are identical or not (Ram Lal Narang v. State (Delhi Administration), (1979)2 SCC 322).
The concept of 'sameness' has been given a restricted meaning. In order to examine the impact of one or more FIRs, the Court has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the 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 FIR 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, Page 32 of 34 R/CR.MA/16490/2014 CAV JUDGMENT 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).
In view of the above, I have reached to the conclusion that there is no commonality in any of the FIRs and they emerged from different circumstances. It is not possible for me to take the 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.
A close reading of the entire decision of the Supreme Court in the case of Amitbhai Anilchandra Shah (supra) would reveal that the entire conspiracy to kill a person by name Sohrabuddin, his wife Kausharbi and one Tulsiram Prajapati was covered in the first FIR dated 1 st February 2010. The Supreme Court took the view, in light of the factual details, that since the entire larger conspiracy was covered in the first FIR there could not have been a second FIR for the murder of Tulsiram Prajapati. In such circumstances, the Supreme Court finally quashed the second FIR dated 29th April 2011, holding that the killing of Tulsiram Prajapati was a part of the same series of cognizable offence forming part of the first FIR. As a consequence, the charge-sheet which was filed in pursuance of the second FIR was ordered to be treated as supplementary charge-sheet in the first FIR.
I find it extremely difficult to accept the vociferous Page 33 of 34 R/CR.MA/16490/2014 CAV JUDGMENT submission canvassed on behalf of the applicants that since the modus operandi remains the same for the purpose of cheating the different individuals there could not have been more than one FIR. I do not find any element of 'sameness'. In my view each of the transactions are distinct, thereby constituting distinct offences.
In the result, all these applications fail and are hereby rejected.
I clarify that I have otherwise not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law or the applicants may avail of appropriate legal remedy before the appropriate forum in accordance with law.
In view of the order passed in the main application, the connected Criminal Miscellaneous Applications have become infructuous and are hereby disposed of.
(J.B.PARDIWALA, J.) MOIN Page 34 of 34