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2009 DIGILAW 208 (GUJ)

Anvar Azimbhai Sheikh v. State of Gujarat

2009-03-26

JAYANT PATEL

body2009
Judgment Jayant Patel, J.—As the facts in all the petitions are interconnected, they are being considered by this common Judgement. 2. The short facts of the case appears to be that the petitioner of Special Criminal Application No. 1097/03 filed private complaint before the Chief Judicial Magistrate, First Class, Vadodara being registered as Complaint No. 221/03 against one Bharatbhai Dahyabhai Barot, Sureshbhai Parshottambhai Brahmbhatt and Aminuddin @ Aman Isamaddin Sheikh, for the offences under Sections 465, 466, 467, 467 read with Sections 468 and 120-B of the IPC on the ground that all the accused formed an unlawful assembly and have concocted the bogus documents and the rights of the original complainant in the property are frustrated. It appears that the learned Magistrate passed an order for holding inquiry under Section 202 of the CrPC. The original complainant being aggrieved by the said order of the learned Magistrate, has preferred Special Criminal Application No. 1097/03 for the relief inter alia to quash and set aside the order of the Judicial Magistrate (Annexure-A) and to direct the Chief Judicial Magistrate to order inquiry under Section 156(3) of the CRPC. It further appears that pending the petition, the interim stay came to be granted in terms of Para 8-C. As a result thereof, the operation of the order passed by the Chief Judicial Magistrate remained stayed. Consequently, the inquiry under Section 202 of the CRPC has not proceeded further. 3. It appears that thereafter, the very complainant filed another complaint vide C.R. No. 62/04 with J.P. Road Police Station, Vadodara, on the same accusation of concoction of documents, but in the said complaint, the name of certain accused have been added which were not mentioned in the private complaint. Some of the accused in the said criminal complaint filed before the police have preferred Cr. Misc. Application No. 1496/04 for quashing of the complaint filed before the Police vide CR.No.62/04. It appears that one of the accused of the said police complaint, viz. Bharatbhai Dahyabhai Barot, has preferred a separate Cr. Misc. Application No. 1652/04 for quashing of the same complaint registered vide CR.No. 62/04 with J.P.Road Police Station, Vadodara. Pending the petition, the investigation pursuant to the complaint appears to have not proceeded further since the interim relief was granted by this Court. 4. Heard Mr. Darji for Mr. Lakhani, Mr. D.J.Bhatt, Mr. N.K. Majmudar, Mr. Misc. Application No. 1652/04 for quashing of the same complaint registered vide CR.No. 62/04 with J.P.Road Police Station, Vadodara. Pending the petition, the investigation pursuant to the complaint appears to have not proceeded further since the interim relief was granted by this Court. 4. Heard Mr. Darji for Mr. Lakhani, Mr. D.J.Bhatt, Mr. N.K. Majmudar, Mr. Saiyed as well as the learned APP appeared for the State and the police in the respective petitions. 5. It appears that it is an admitted position by the learned counsel for the private parties as well as the learned APP confirmed the same that the subject matter of the private complaint filed before the learned Magistrate by the original complaint and the complaint filed before the subsequently registered vide C.R. No. 62/04 is the same. 6. Under these circumstances, two aspects may be required to be examined. One would be the legality and validity of the order passed by the learned Magistrate for holding inquiry under Section 202 of the CrPC in the private complaint filed by the original complainant and the another would be as to whether considering the facts and circumstances, the subsequent complaint filed with the police for the same subject matter deserves to be quashed or not. 7. On the first aspect, it appears that when any complaint is filed before the Court, discretion lies with the Court to be exercised judicially as to whether it would be a fit case to order inquiry under Section 202 of the CrPC by the Court itself or it should be sent for police investigation under Section 156(3) of CrPC. In the present case, the learned Magistrate has passed the order under Section 202 of CrPC to the effect that Police Inspector, J.P. Road Police Station would inquire into the matter and submit the report within 60 days. Therefore, the learned Magistrate has found it proper to take cognizance or otherwise to issue process only after the inquiry is made by the police and the report is submitted before it. 8. The learned Counsel for the original complainant Mr. Saiyed has not been able to show any perversity in exercise of the discretion by the learned Magistrate in passing the impugned order dated 24.10.2003, whereby the inquiry is ordered under Section 202 of CrPC. 9. 8. The learned Counsel for the original complainant Mr. Saiyed has not been able to show any perversity in exercise of the discretion by the learned Magistrate in passing the impugned order dated 24.10.2003, whereby the inquiry is ordered under Section 202 of CrPC. 9. It appears that there is no perversity in exercise of the judicial discretion by the learned Magistrate in passing the impugned order. Hence, it would be just and proper to quash and set aside the order passed by the learned Magistrate and or to specifically direct the learned Magistrate to order inquiry under Section 156(3) of CrPC. 10. On the second aspect, for quashing of the criminal complaint subsequently filed by the original complainant with the police vide C.R. No. 62/04 is concerned, it is by now well settled that the second complaint for the same subject matter would not be maintainable before the Court for taking cognizance thereof in normal circumstances. Reference may be made to the decision of the Apex Court in case of T.T. Antony vs. State of Kerala reported at AIR 2001 SC 2637 , and more particularly, the observations made at Paras 18 & 19 of the said decision, which reads as under: “18. An information given under Sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (FIR) though this term is not used in the Code. It is 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 Sections 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 information 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 diary and this is implied in Section 154 of Cr.P.C. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other information 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 FIR 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. Take a case where an FIR mentions cognizable offence under Sections 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C. as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. 19. The scheme of the Cr.P.C. is that an officer-in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. 19. The scheme of the Cr.P.C. is that an officer-in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. 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 evidence collected he has to form opinion under Sections 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. 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 Cr.P.C.” 11. If the facts of the present case are examined in light of the above legal position as recorded hereinabove, it is an admitted position that the subsequent complaint with the police is for the same subject matter, on the same accusation. When the learned Magistrate has already ordered inquiry under Section 202 in respect to the first complaint, and the said inquiry is also to be made by the police and the report is to be submitted before the learned Magistrate apart from the fact that the second complaint may not be maintained, if the second complaint with the police vide C.R. No.62/04 is allowed to continue, it would result into further complication and the investigation by the police may be premature prior to the competent Court considers the matter for the alleged offence. 12. Under these circumstances, it would be just and proper to quash the complaint vide CR. No. 62/04 filed with the J.P. Road Police Station, Vadodara, Annexure-C of Cr. Misc. Application No. 1496/06 and the very complaint is also the subject matter of challenge in Cr.Misc. Application No. 1652/04. 13. In the result, Spl. Crim. Application No. 1097/03 deserves to be dismissed and hence, dismissed. Rule discharged. 14. In Cr. Misc. Application Nos. 1496/04 and 1652/04, the complaint vide CR. No. 62/04 filed with the J.P. Road Police Station, Vadodara, is hereby quashed and set aside. Application No. 1652/04. 13. In the result, Spl. Crim. Application No. 1097/03 deserves to be dismissed and hence, dismissed. Rule discharged. 14. In Cr. Misc. Application Nos. 1496/04 and 1652/04, the complaint vide CR. No. 62/04 filed with the J.P. Road Police Station, Vadodara, is hereby quashed and set aside. However, it is observed that the rights and contentions of both the sides in the proceedings of private complaint being Complaint No. 221/03 pending before the Chief Judicial Magistrate, Vadodara shall remain open, as may be available in law. Rule made absolute in both the proceedings. No order as to costs.