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2018 DIGILAW 900 (RAJ)

Bhori Lal @ Bhoriya v. State of Rajasthan

2018-04-04

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT : Kanwaljit Singh Ahluwalia, J. The present petition has been filed under Section 482 Cr.P.C., praying that the case FIR No. 39/2018 registered at Police Station Mansarovar, Jaipur City (South) for the offences under Sections 420, 467, 468, 471 and 120B IPC be quashed as qua same land by the same company, through another Director earlier FIR bearing No. 106/2002 was registered and the proceedings arising thereof are pending before the court of Additional Metropolitan Magistrate No.20, Jaipur. 2. Briefly stated, Sushil Bhagoriya submitted a complainant against thirteen persons stating therein that he is Director of Arjun Colonizers Pvt. Ltd. and the said company had purchased an agricultural land measuring 1.79 hectare falling within different khasras in village Devari, Patwar Area Mangiyawas, Tehsil Sanganer. It is further stated that Jaipur Development Authority under Section 90B of Rajasthan Land Revenue Act, had allowed conversion of the user. It is further stated that when employees and workers of the company went to take possession, accused named in the FIR threatened the employees and workers of the company. It is further stated that accused no. 1 to 7 and 13 have forged the false lease deed qua the same land. 3. The said complaint was filed in the court of Additional Chief Judicial Magistrate No.6, Jaipur Metropolitan, Jaipur. The said court passed orders under Sections 156(3) Cr.P.C., as a result thereof, impugned FIR No. 39/2018 was registered at Police Station Mansarovar, Jaipur City (South) for the offences under Sections 420, 467, 468, 471 and 120B IPC. 4. The learned counsel for the petitioner has submitted that earlier also by another Director of the company, FIR No. 106/2002 was lodged at the same police station alleging therein that the accused have forged and fabricated the lease deed. It is contended that the proceedings arising out of the FIR pertaining to year 2002 are pending in the court of Metropolitan Magistrate No.20, Jaipur. 5. Sub Inspector, Mahendra Singh, Police Station Mansarovar, Jaipur being investigating officer of the case is present in the court. The learned Public Prosecutor on instructions from Mr. Mahendra Singh the investigating officer, has submitted that qua same land regarding forgery of the lease deed, indeed earlier FIR was registered and after completion of investigation, charge-sheet was submitted therein. 5. Sub Inspector, Mahendra Singh, Police Station Mansarovar, Jaipur being investigating officer of the case is present in the court. The learned Public Prosecutor on instructions from Mr. Mahendra Singh the investigating officer, has submitted that qua same land regarding forgery of the lease deed, indeed earlier FIR was registered and after completion of investigation, charge-sheet was submitted therein. The learned Public Prosecutor on instructions from investigating officer has submitted that since the present complaint was received under Section 156(3) Cr.P.C., police was bound to comply with the directions issued by the court of concerned Magistrate and hence, the second FIR was registered. 6. Mr. Aditya Sharma, the learned counsel for the complainant has submitted that the petitioner is a different Director, though the company is same but he has lodged the present FIR in his individual capacity. The learned counsel for the complainant has not denied that qua same allegations earlier FIR was lodged by another Director. However, he has submitted that in the present case, accused who have forged the documents are different. 7. I have heard the learned counsel for the parties. 8. It is undeniable fact that the qua same cause of action, earlier FIR was registered in the year 2002 and that too at the instance of the same company but by a different Director, pertaining to same land. Thus, rightful course for the complainant company was to file an application under Section 319 Cr.P.C. to summon the persons named as accused in second FIR as additional accused, in the FIR pertaining to the first case. However, qua the same cause of action second FIR could not be lodged. 9. 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. 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 Sub-section (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. 10. This Court finds no justification to register second FIR qua the same land on same allegations that too after sixteen years of the first occurrence. 11. Even if this Court accept the plea raised by the learned counsel for the complainant that the accused now named in the FIR are different, this Court cannot ignore that the issue regarding the validity or genuineness of the lease deed is subject matter of earlier FIR and qua same trial is pending. Therefore, the rightful course for the complainant company is to file an application under Section 319 Cr.P.C., before the trial court in case evidence has commenced in the trial arising out of the earlier FIR. In case evidence has not commenced, application can be filed under Section 190 Cr.P.C. for taking cognizance against other accused who are guilty of forging the lease deed and have not been sent for trial. 12. In view of above, impugned FIR No. 39/2018 registered at Police Station Mansarovar, Jaipur City (South) for the offences under Sections 420, 467, 468, 471 and 120B IPC being second FIR not maintainable is quashed with above said liberty to the complainant company. Nothing said herein shall affect the merits of the case, which is pending arising out of first FIR bearing No. 106/2002, registered at Police station Mansarovar, Jaipur for the same offences. 13. Nothing said herein shall affect the merits of the case, which is pending arising out of first FIR bearing No. 106/2002, registered at Police station Mansarovar, Jaipur for the same offences. 13. At this stage, the learned counsel for the complainant has submitted that liberty may be granted to the complainant to file a fresh complaint in the court of competent Magistrate by taking recourse to Section 210 Cr.P.C. 14. Liberty as prayed for may be availed in case same is legally tenable. SBCRLMP No.693/2018: 15. Mr. Aditya Sharma, the learned counsel for the complainant/petitioner in SBCRLMP No. 693/2018 has submitted that in view of the order of even date passed in SBCRLMP No. 1275/2018 titled Bhori Lal @ Bhoriya vs. State of Rajasthan & Anr., nothing survives in the present petition and hence, same may be disposed of. Ordered accordingly.