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2018 DIGILAW 1125 (RAJ)

Brajraj Singh v. State of Rajasthan

2018-05-02

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT : Kanwaljit Singh Ahluwalia, J. Present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.38/2018, dated 22.01.2018 registered at Police Station Kekri, Ajmer for offences under Sections 420, 467, 468, 120B and 406 IPC. Present FIR has been lodged by Gopal S/o Balal. FIR lodged by him is annexed with the present petition as Annexure-4. 2. Complainant-Respondent No.2 Gopal in the impugned FIR stated that the complainant on 14.03.2012 had purchased Plot Nos.33 and 34 through registered sale deed from Brijraj Singh S/o Raghuveer Singh, Smt. Praveen Kanwar W/o Brijraj Singh and Jaivardhan Singh S/o Brijraj Singh. The complainant stated that above-said accused in order to cheat the complainant executed a forged document regarding sale of the land. 3. This Court on 11.04.2018 had passed the following order:- "The learned counsel for the petitioner contends that earlier at the instance of complainant, FIR No.612/2015 was registered at Police Station Kekri, District Ajmer for the offences under Sections 420, 406 and 120B IPC and in the said FIR, Final Report in negative form was submitted opining that the dispute if any is civil in nature. The learned counsel for the petitioner contends that subsequently on self-same allegations, impugned FIR No. 38/2018 dated 22.1.2018 was registered at the same police station for the offences under Sections 420, 468, 120B and 406 IPC. Issue notice to the respondents for 2.5.2018. Process Dasti also. List this case 2.5.2018." 4. Today Mr. Nahar Singh, S.I./Investigating Officer is present in Court. He has not denied that on the same allegations in earlier FIR lodged by different complainant final report in negative form has been submitted by giving an opinion that dispute is civil in nature. 5. Counsel for the petitioner has submitted that for the same offence pertaining to similar transaction the investigating agency cannot give two different opinions. 6. Be that as it may, it is not denied by the Counsel for the petitioner, Investigating Officer and Counsel for the complainant that final report submitted in negative form in FIR lodged by another complainant has been accepted by the trial Court. 7. It will be appropriate to reproduce following observations made by the Supreme Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., (2013) 6 SCC 348 : "37. 7. It will be appropriate to reproduce following observations made by the Supreme Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., (2013) 6 SCC 348 : "37. 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, 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 Code of Criminal Procedure is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Code of Criminal Procedure 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 Code of Criminal Procedure, as the case may be, and forward his report to the Magistrate concerned Under Section 173(2) Code of Criminal Procedure. 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 Code of Criminal Procedure. 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 Code of Criminal Procedure only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Code of Criminal Procedure. 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. 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 Code of Criminal Procedure. 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 Code of Criminal Procedure 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) Code of Criminal Procedure. It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal Procedure, nay, a case of abuse of the statutory power of investigation in a given case. It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal Procedure, 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 Code of Criminal Procedure 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. ... ... 54. In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior Counsel for the Petitioner, in Ramlal Narang , the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case. . ... 58.1. This Court accepting the plea of the CBI in Narmada Bai that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed the CBI to "take over" the investigation and did not grant the relief prayed for i.e., registration of a fresh FIR. Accordingly, filing of a fresh FIR by the CBI is contrary to various decisions of this Court. 58.2 The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the First Information Report, on coming to know of the commission of cognizable offence. 58.2 The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the First Information Report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of evidence collected, Investigating Officer has to form an opinion Under Section 169 or 170 of the Code and forward his report to the concerned Magistrate Under Section 173(2) of the Code. 58.3 Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from Subsection (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, 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. 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. 58.4 Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House Diary, the officer-in-charge of the 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 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report (s) to the Magistrate. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report (s) to the Magistrate. 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 underway or final report Under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power Under Section 482 of the Code or under Articles 226/227 of the Constitution. 58.5 First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR." 8. In view of the judgment rendered by the Supreme Court in Anilchandra Shah Vs. Central Bureau of Investigation & Anr., which has been followed by this Court in Bhori Lal @ Bhoriya Vs. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No.1275/2018, decided on 04.04.2018, impugned FIR is quashed subject to liberty to the Investigating Officer to file a supplementary report under Section 173(8) Cr.P.C. in the first FIR in which final report in negative form has already been accepted as complainant to the present FIR is also entitled to file a protest petition to demonstrate before the Court of the Magistrate that in his complaint no civil dispute is discernible and the accused have committed cognizable offences. 9. On basis of impugned FIR (Annexure-4) which has been quashed, Mr. Nahar Singh, S.I./Investigating Officer, if so advised or on his own accord would submit a supplementary report of investigation in the Court of concerned Magistrate within one month from today. It will be open for the Investigating Officer to give his opinion along with the report of investigation whether accused is to be prosecuted or not and whether dispute is civil in nature or not? 10. It will be open for the Investigating Officer to give his opinion along with the report of investigation whether accused is to be prosecuted or not and whether dispute is civil in nature or not? 10. Upon filing of the report of investigation along with opinion of the Investigating Officer, the complainant shall be entitled to file a protest petition and the protest petition, so filed, shall be decided by the Court of concerned Magistrate by passing a detailed speaking order. 11. Liberty is granted to the Counsel for the complainant to distinguish or assail acceptance of earlier final report in negative form. 12. In view of the observations made and directions issued above, present petition is disposed of.