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2020 DIGILAW 886 (GUJ)

Shailesh Babulal Bhatt v. State Of Gujarat

2020-10-26

A.P.THAKER

body2020
ORDER : 1. The present petition has been filed under Section 482 of the Criminal Procedure Code for the following reliefs; (A) That the Hon'ble Court may be pleased to admit this Criminal Misc. Application. (B) That the Hon'ble Court may be pleased to allow this present Criminal Misc. Application by quashing and setting aside the complaint filed at Annexure A as FIR No.11210008201208 of 2020 before Sarthana Police Station, Surat and also be pleased to quash further proceedings arising out of the same qua petitioners in the interest of justice. (C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to further proceedings of FIR No.11210008201208 of 2020 registered before Sarthana Police Station, Surat in the interest of justice. (D) Grant such other and further relief as deemed just and proper by this Hon'ble court in the interest of justice. 2. It is contended by the petitioners that the FIR has been filed by one Rajubhai Ravjibhai Desai inter alia mainly stating that he is residing at the address mentioned in the complaint along with his family and doing construction work in the name and style of “Sidhhi Vinayak Corporation” and earning his livelihood. It is further contended by the complainant that at present one construction site is running at Village : Laskana, District: Surat and block no.(D) is completed and possession is also given to the customers many of them are residing in the said building and for other blocks, construction work is going on. 2.1. It is contended by the complainant that he has purchased aforesaid construction site in the year 2013-2014 from one Kishorbhai Maida by executing registered sale deed and after purchasing the same, N.A proceedings have started in the year 2015 and at that time, the complainant came to know that old ULC case is pending and accordingly he contacted the original owner namely Rukhiben Patel and for the said proceedings, he was in need of Rs.4 Crores. According to the complainant, he has contacted his friend namely Chaturbhai Ramani who introduced the complainant with Vijaybhai Khokhariya and Shaileshbhai Bhatt and accordingly, both of them have agreed to lend the money at the rate of 1.5% and even for security purpose of Rs.8 Crores, documents of the land from the complainant demanded by them. According to the complainant, he has contacted his friend namely Chaturbhai Ramani who introduced the complainant with Vijaybhai Khokhariya and Shaileshbhai Bhatt and accordingly, both of them have agreed to lend the money at the rate of 1.5% and even for security purpose of Rs.8 Crores, documents of the land from the complainant demanded by them. It is further contended by the complainant that after 15 days, the amount was given to him by cheque and Rs.30 Lakh towards interest for the period of six months came to be deducted even one registered agreement to sale dated 03.06.2015 without possession came to be executed by him in favour of Vijaybhai Khokhariya for a sum of Rs.6,45,13,385/-. 2.2. It is contended by the complainant that after two months of executing of aforesaid documents, he was called by Shaileshbhai Bhatt at the office of Chaturbhai and he was asked to immediately return the amount as Shaileshbhai Bhatt informed that he has to pay 4.5% interest or else complainant has to pas very same interest on the next day. It is contended that again, complainant was called at the office of advocate Dharmesh Patel where Shaileshbhai Bhatt and Nikunj Bhatt were present and complainant was asked to pay interest at the rate of 4.5% and in default, another 1% of interest towards penalty was to be paid. It is further contended by the complainant that till November 2017, the complainant has paid interest and towards actual amount of Rs.2 Crore is to be paid to one Kirit Paladiya and Ankush Nakrani as per the instruction given by Shaileshbhai Bhatt and Nikunj Bhatt. It is further contended that in all, the complainant has paid Rs.6 Crore including interest as well as Rs.2 Crore cash and, therefore, the complainant has requested Shaileshbhai Bhatt and Nikunj Bhatt to execute document, however, they have given excuse that the advocate is not available and accordingly promise was made to execute documents in next month. 2.3. It is further contended that in all, the complainant has paid Rs.6 Crore including interest as well as Rs.2 Crore cash and, therefore, the complainant has requested Shaileshbhai Bhatt and Nikunj Bhatt to execute document, however, they have given excuse that the advocate is not available and accordingly promise was made to execute documents in next month. 2.3. It is further stated in the FIR that after 15 days, complainant was called at the office of the advocate Dharmesh Patel by Shaileshbhai Bhatt where advocate Dharmesh Patel as well as Shaileshbhai Bhatt and Nikunj Bhatt were present along with 15 unknown persons and informed that Shailesh Bhatt having dispute with Vijay with regard to the transaction and accordingly, the complainant was asked to execute document with Shailesh Bhatt only even threats were given to the complainant. Thereafter, one document came to be executed in which complainant was forced to sign and he was not allowed to read the same. Further, the same was also come to be notorized at the office of the Notary Dipak Parekh subsequently the complainant came to know that Shailesh Bhatt has executed the document in which complainant has sold 25 flats to the Shailesh Bhatt and even in one diary also signatures of the complainant was obtained, however, flat numbers or block numbers were not mentioned in the documents. 2.4. It is further contended by the complainant that in the year 2018, one FIR came to be registered against Shailesh Bhatt in which complainant was also accused and in January 2019, the complainant remained present before the police in the said case which was registered regarding the bit-coin transaction after complainant came to be released, he has started his construction work again and he came to know that Shailesh Bhatt came to know that till January 2020, Shailesh Bhatt was absconding in his bitcoin offence. It is further contended that in the month of February 2020, the complainant came to know that Shailesh Bhatt came to be released in their bit-coin offence and, thereafter, Shailesh Bhatt along with other 20 unknown persons came in four different cars at the construction site of the complainant. It is further contended that in the month of February 2020, the complainant came to know that Shailesh Bhatt came to be released in their bit-coin offence and, thereafter, Shailesh Bhatt along with other 20 unknown persons came in four different cars at the construction site of the complainant. According to the complainant, he was informed by his manager namely Rajubhai and, therefore, the complainant reached at the site where Shailesh Bhatt informed him that he came to take over the possession, at that point of time, complainant requested to find out some solution. At that point of time, Shailesh Bhatt informed that one Anirudhsinh Ribda to whom amount of Rs.17 Crore along with 2 years interest in tune of 4.5% is to be paid by the complainant as Anirudhsinh is looking after the transaction and with whom, through whatsapp call complainant was asked to make contact. According to the complainant, he has talked with Anirudhsinh and he has given threats to the complainant. According to the complainant, he requested for some time and at that time, he was asked to come Ahmedabad after two days. 2.5. It is contended by the complainant that at that point of time, it was conveyed that four persons will stay in the building block – D and from that day, four unknown persons stayed in the building. It is further contended by the complainant that thereafter, he had gone to Ahmedabad to meet Anirudhsinh at Rajpath Club where also, the complainant was asked to pay the amount or else he will take over the possession of the site and after making repeated request 15 days time was given by Anirudhsinh. 2.6. It is also contended by the complainant that due to lockdown, subsequently in the month of May 2020, Shailesh Bhatt called the complainant and informed that the complainant has to pay Rs.33 Crore. At that point of time, the complainant informed that he was not in a position to pay the said amount. Even, after two to three times, they have met and complainant was pressurized by Shailesh Bhatt and at that time Anirudhsinh was come to Surat in the month of June 2020. At that point of time, the complainant informed that he was not in a position to pay the said amount. Even, after two to three times, they have met and complainant was pressurized by Shailesh Bhatt and at that time Anirudhsinh was come to Surat in the month of June 2020. It is contended by the complainant that in the last week, Anirudhsinh came and called the complainant to come at the house of Dhaval Jain and he along with Nileshbhai Asodariya gone to meet Anirudhsinh where again demand of Rs.33 Crore were made. It is contended that at that time, complainant has shown is willingness to give land and, therefore, he has shown different places to Shailesh Bhatt, however, the same was disliked by Shailesh Bhatt. It is further contended by the complainant that subsequently, on 25.07.2020, he along with his friends Nileshbhai and Pravinbhai have gone to Village: Ribda to meet Anirudhsinh, from where also threats were given to the complainant. 2.7. It is contended by the complainant that the land belongs to one Chandreshbhai Patel situated at Bharuch was offered and the complainant requested Shailesh Bhatt and Anirudhsinh to pay Rs.8 Crore to the farmer of the said land towards sale deed which was denied and again threats were given to him. 2.8. It is contended by the complainant that on 20.08.2020, 12 unknown persons have come and started obstruction at the site of the complainant and, therefore, the complainant and his wife have reached at the site where one unknown person has shown with revolver to the complainant who introduced himself as Sabbir. According to the complainant, he was scarred and, thereafter, he has gone to his office and, thereafter he has informed the police subsequently on 22.08.2020. The complainant has also given application to the Police Commissioner against four unknown persons on which four unknown persons were caught from block D whose names were also mentioned in the FIR and weapons were also recovered from them. 2.9. On the aforesaid facts, the FIR came to be lodged by the complainant against all the accused alleging that the accused, who are named in the FIR, have hatched conspiracy and have grabbed property of the complainant. 3. 2.9. On the aforesaid facts, the FIR came to be lodged by the complainant against all the accused alleging that the accused, who are named in the FIR, have hatched conspiracy and have grabbed property of the complainant. 3. Reciting the contentions of the alleged FIR, it is submitted by the petitioners that they have not committed any offence as alleged and they are sought to be implicated falsely in the present case and the impugned FIR is second FIR in number as for the same alleged conspiracy earlier separate FIR came to be registered which is even otherwise, not permissible as per the law and, therefore, the petitioners do not have any option but to approach this Court. It is submitted by the petitioners that in the present case, on 23.08.2020 at 1.00 pm, FIR came to be registered with Sarthana Police Station, Surat for the offences under Section 447, 448 and 114 of the Indian Penal Code and Section 25(1-A), 25(1-B)(A) and 29 of the Arms Act by one Prakashbhai Maganbhai Hathila, who is serving as Police Sub-Inspector pursuant to the complaint made by one Rajubhai Desai to the Police Commissioner, Sector 1, Surat mainly alleging of trespass by the four persons in the property of the complainant and others with police personnel have gone to the place where four persons namely (1) Salimbhai Ibrahimbhai Theba; (2) Sajit Sultanbhai Theba; (3) Hanif Allarakha Darzada and (4) Umarbhai Kasambhai Patni were found with alleged weapons as narrated in the FIR came to be seized from them and accordingly, FIR came to be registered. 3.1. It is submitted by the petitioners that after filing of the aforesaid FIR with the very same police station at the instance of respondent no.2 namely Rajubhai Desai, who is the informant at whose instance earlier FIR came to be registered, subsequently, again he has lodged the another FIR with very same police station to implicate as many as person with mala fide intention and oblique motive just to create pressure upon the petitioners. It is submitted by the petitioners that even otherwise, same is not maintainable as per the law. It is submitted by the petitioners that the complaint is based on the same facts. It is further submitted by the petitioners that the present FIR is in continuation of the alleged incident. It is submitted by the petitioners that even otherwise, same is not maintainable as per the law. It is submitted by the petitioners that the complaint is based on the same facts. It is further submitted by the petitioners that the present FIR is in continuation of the alleged incident. It is further submitted that two different FIRs came to be registered on the practically same date by the two different complainants which clearly indicate that the same are registered with mala fide intention and oblique motive and the same is nothing but an after thought. It is submitted by the petitioners that it is always open for the Investigating Officer to amend, alter and/or add any other sections during further course of investigation. It is submitted by the petitioners that it is not open for the Investigating Officer to register separate FIR. According to the petitioners, in the present case, Investigating Officer ought to have amended or added any other sections pursuant to the investigation of the previous FIR. According to the petitioners, considering the facts and circumstances of the case, prima facie, the impugned FIR is not maintainable and it is liable to be quashed and set aside. The petitioners have referred to the decision of the Apex Court in the case of Bhajanlal Vs. Haryana and have prayed to quash the impugned second FIR. 4. Heard Mr.Yogesh Lakhani, learned senior counsel with Mr.Kishan Daiya, learned advocate for the petitioners, Ms.Maithili Mehta, learned APP for the respondent – State and Mr.Hardik Dave, learned advocate for the original complainant at length. Perused the materials placed on record as well as the decisions cited at the Bar. 5. Mr.Yogesh Lakhani, learned senior counsel with Mr.Kishan Daiya, learned advocate for the applicant has vehemently submitted the same facts which are narrated in the memo of petition. While referring to the first and second FIRs, Mr.Lakhani, learned senior counsel has submitted that the first FIR came to be filed on 23.08.2020 and second FIR came to be filed on 24.08.2020 and the material facts of both the FIR is identical and similar in nature. According to him, in the first FIR itself, the prosecution has obtained the information from the complainant and, thereafter also, the accused came to be arrested, whereas, in the second FIR, number of the accused has been added. According to him, in the first FIR itself, the prosecution has obtained the information from the complainant and, thereafter also, the accused came to be arrested, whereas, in the second FIR, number of the accused has been added. According to him, instead of registering the second FIR, Investigating Officer ought to have added or amended first FIR and ought to have treated the second FIR as further statement of the complainant. He has submitted that the Investigating Officer has ample power to add any offence, if during the investigation, it is found that the offence, initially, made in the FIR is not sufficient and other offences are made out from the investigation papers. 5.1. While referring to the first FIR, Mr.Yogesh Lakhani, learned senior counsel with Mr.Kishan Daiya, learned advocate for the petitioners has submitted that at point of time, though inquiry was made of Rajubhai, he has not given any facts as narrated in the second FIR. He has submitted that Rajubhai has not disclosed to the police authority as to who are the persons in his flat. He has submitted that first FIR has been lodged by the Police Inspector against four persons having identical facts. 5.2. According to Mr.Lakhani, learned senior counsel, in the second FIR, the period of offence has been shown as 03.06.2015 to 22.08.2020. While reading both the complaints, learned senior counsel has submitted that in the second FIR, names of the accused have only added and 2 to 3 sections were added, except that the contents are the same. He has submitted that in the first FIR, the informant has not disclosed everything to the Investigating Officer. According to him, second FIR may be treated as further statement of Rajubhai and at the same time, statements of others could have been recorded. He has submitted that filing of the second FIR is not legal and valid and it deserves to be set aside. He has submitted that if both the FIRs read conjointly, it is based on the similar transactions and, therefore, when the facts are similar, there cannot be any two FIR. According to him, the FIRs could be clubbed and investigated accordingly. He has submitted that the exercise by the prosecution agency in registering the two FIRs is based on the same and identical facts is nothing but misuse of the power. According to him, the FIRs could be clubbed and investigated accordingly. He has submitted that the exercise by the prosecution agency in registering the two FIRs is based on the same and identical facts is nothing but misuse of the power. Therefore, the second FIR may be quashed and set aside. 5.3. Mr.Lakhani, learned senior counsel has relied upon the following decisions for his submissions. 1. Prem Chand Singh Vs. State of Uttar Pradesh, (2020) 3 SCC 54 ; 2. T. T. Antony Vs, State of Kerala, AIR 2001 SC 2637 ; 3. Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation, (2013) 6 SCC 348 ; 6. Per contra, Ms.Maithili Mehta, learned APP for the respondent – State has vehemently submitted that the contentions raised in both the FIRs are different and there is no any illegality committed by the concerned police authority in registering the two FIRs. While referring to the contentions raised by Mr.Lakhani, learned senior counsel regarding the contents and facts of the two FIRs, she has submitted that there is no similar transaction, but the second FIR revealed detailed facts and second FIR lodged by the complainant himself, whereas, the complainant in the first FIR is the police personnel. She has submitted that the present petitioners are headstrong persons and contents of the FIR are different one. She has submitted that the petitioners may approach for bail. This is not a case for exercise of discretion of quashing the FIR. She has submitted that the decisions relied upon by Mr.Lakhani, learned senior counsel are not applicable to the facts and circumstances of the present case as in both the FIRs, the complainants are different and incidents are also different and the complainant was even called at other places and there are number of threats given to the complainant at various places. According to her, considering this scenario, the present petition deserves to be rejected. 7. Mr.Hardik Dave, learned advocate for the original complainant has adopted the arguments of learned APP and has further submitted that both the FIRs are filed by two different informant. According to him, the first FIR is cryptic in nature, whereas, in the second FIR, what is happened to the complainant has been narrated in detailed. 7. Mr.Hardik Dave, learned advocate for the original complainant has adopted the arguments of learned APP and has further submitted that both the FIRs are filed by two different informant. According to him, the first FIR is cryptic in nature, whereas, in the second FIR, what is happened to the complainant has been narrated in detailed. He has submitted that the informant of the first FIR is police personnel, whereas, in second FIR, the victim is the original complainant himself who has undergone mental stress due to threat given by the headstrong persons. He has submitted that it is statutory right of the complainant to give complaint against the offenders and if the submissions of Mr.Lakhani, learned senior counsel are accepted that the second FIR may be treated as further statement of the complainant in the first FIR, then, the very right of the complainant namely Rajubhai may be frustrated and the facts of different offences revealed from the second FIR will be jeopardized. 7.1. Mr.Dave, learned advocate for the complainant has submitted that the present proceeding is premature. He has submitted that the occurrence of the alleged offences are different and there are different places against the different persons and the offences are also cognizable and different in nature. He has submitted that both the FIRs can be sustainable in the eyes of law and in the present case, there is mixed question of fact and at this stage, the second FIR may not be set aside. 7.2. While referring to Section 154 of the Criminal Procedure Code, Mr.Dave, learned advocate for the complainant has submitted that under this section, it is mandatory duty of the police authority to accept the FIR when there is cognizable offence and it is exclusive and prerogative of the Investigating Officer to investigate the same. He has submitted that in a given case, if there is gross mala fide on the part of the Investigating Officer, then, the Court can interfere with the discretion of the Investigating Officer. However, in the present case, no mala fide is alleged against the Investigating Officer. He has submitted that the first FIR is for single incident, whereas, in the second FIR, the complainant has given entire version of the different places as well as different persons regarding threat given to kill and second FIR is having larger magnitude. However, in the present case, no mala fide is alleged against the Investigating Officer. He has submitted that the first FIR is for single incident, whereas, in the second FIR, the complainant has given entire version of the different places as well as different persons regarding threat given to kill and second FIR is having larger magnitude. He has submitted that the statement of the complainant in the second FIR cannot be recorded under Section 161 of the Criminal Procedure Code for the first FIR. 7.3. While referring the decisions relied upon by Mr.Lakhani, learned senior counsel, Mr.Dave, learned advocate for the original complainant has submitted that even in those decisions, the Apex Court has held that if there is different facts and circumstances, then, the two FIRs can be filed and there may not be any ground for quashment of the FIR. He has submitted that there is no straight jacket formula for quashment of the second FIR. 7.4. Mr.Dave, learned advocate for the complainant has relied upon the following decision and submitted that the second FIR could be maintainable. Anju Chaudhary Vs. State of U P and Anr., (2013) 6 SCC 384 ; 8. In rejoinder, Mr.Lakhani, learned senior counsel has submitted that in the second FIR, it appears that accused nos. 7, 8, 9 and 10 are similar persons who have been named in the first FIR. He has submitted that the series of transaction has been narrated in the second FIR and first FIR are the same. Regarding decision cited at the Bar, Mr.Lakhani, learned senior counsel has referred to paras-25 and 28 thereof and submitted that the present petition may be allowed as second FIR is nothing but misuse of legal process. He has submitted that the first FIR and the second FIR are interlinked and not different one. He has prayed to allow the present petition. 9. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 10. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 11. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 12. In the case of Prem Chand Singh (supra), the Apex Court has held in para-11 as under:- “11. It is, therefore, apparent that the subject matter of both the FIRs is the same general power of attorney dated 02.05.1985 and the sales made by the appellant in pursuance of the same. 12. In the case of Prem Chand Singh (supra), the Apex Court has held in para-11 as under:- “11. It is, therefore, apparent that the subject matter of both the FIRs is the same general power of attorney dated 02.05.1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds” 13. In the case of T. T. Antony (supra), the Apex Court has held in paras-21 and 28 as under:- 21. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus ther ecan be no second F.I.R., 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 of incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or offences and on entering the F.I.R., in the station house diary, the office 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 of the Cr.P.C. 28. 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 Cr.P.C., empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward report or reports to the Magistrate. In Narangs : case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C., empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward report or reports to the Magistrate. In Narangs : case (supra) 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 but 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 154 Cr.P.C 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 underway 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 Cr.P.C. or under Article 226/227 of the Constitution. 14. In the case of Amitbhai Amilchandra Shah (supra), the Apex Court has held in paras-26 and 52 as under:- 26. As rightly pointd out, this was the stand of the CBI prior to passing of the order in the decision dated 08.04.2011 in W.P. (Crl.) No.115 of 2007. As a matter of fact, based on the above assertion of the CBI, this Court, in the above matter, entrusted the investigation of Tulsiram Prajapati’s killing also to the CBI. It is also not in dispute that the above extracted status reports were part of record of proceedings in W.P. (Crl.) No.115 of 2007. 52) a) This Court accepting the plea of the CBI in Narmada Bai (supra) 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. 52) a) This Court accepting the plea of the CBI in Narmada Bai (supra) 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 (b) 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. (c) 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. 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. (d) 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. 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. (e) 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. (f) In the case on hand, as explained in the earlier paras, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25/26.11.2005. We have already concluded that this Court having reposed faith in the CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed the CBI to “take up” the investigation. (g) For vivid understanding, let us consider a situation in which Mr. We have already concluded that this Court having reposed faith in the CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed the CBI to “take up” the investigation. (g) For vivid understanding, let us consider a situation in which Mr. ‘A’ having killed ‘B’ with the aid of ‘C’, informs the police that unknown persons killed ‘B’. During investigation, it revealed that ‘A’ was the real culprit and ‘D’ abetted ‘A’ to commit the murder. As a result, the police officer files the charge sheet under Section 173(2) of the Code with the Magistrate. Although, in due course, it was discovered through further investigation that the person who abetted Mr. ‘A’ was ‘C’ and not ‘D’ as mentioned in the charge sheet filed under Section 173 of the Code. In such a scenario, uncovering of the later fact that ‘C’ is the real abettor will not demand a second FIR rather a supplementary charge sheet under Section 173(8) of the Code will serve the purpose. (h) Likewise, in the case on hand, initially the CBI took a stand that the third person accompanying Sohrabbuddin and Kausarbi was Kalimuddin. However, with the aid of further investigation, it unveiled that the third person was Tulsiram Prajapati. Therefore, only as a result of further investigation, the CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted; instead filing of a supplementary charge sheet in this regard will suffice the issue. (i) Administering criminal justice is a two-end process, where guarding the ensured rights of the accused under Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly, 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. Accordingly, 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. As a consequence, in our view this is a fit case for quashing the second F.I.R to meet the ends of justice. (j) The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same. 15. In the case of Anju Chaudhari (supra), the Apex Court has held in paras-2, 15, 25 and 28 as under:- 2. A cardinal question of public importance and one that is likely to arise more often than not in relation to the lodging of the First Information Report (FIR) with the aid of Section 156(3) of the Code of Criminal Procedure (for short 'the Code') or otherwise independent within the ambit of Section 154 of the Code is as to whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence. 15. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be constructed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that the recannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deducted from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. Rita Nag v. State of West Bengal, 2009 9 SCC 129 and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No.9185-9186 of 2009 of the same date.) 25. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. Rita Nag v. State of West Bengal, 2009 9 SCC 129 and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No.9185-9186 of 2009 of the same date.) 25. Now, we should examine the facts of the present case in light of the principles stated supra. The complaint/application under Section 156(3) filed by respondent No.2 was founded on the condolence meeting which was attended by a large number of persons including the persons named in the complaint. According to respondent No.2, named persons had given speeches which were communal, provoking and were creating disharmoney between the communities, and encouraging people to commit criminal offences rather than to follow the due process of law. The complaint of respondent No.2 did not relate to any event prior to the holding of the meeting and participation of the stated persons. This complaint was of a general nature and related to various communal riots that occurred subsequent to and as a result of the meeting. Thus, it related to a different case, grievance and alleged commission of offences at the time and subsequent to the holding of the meeting. 28. Even the offences which are stated to have been committed, and for which the two FIRs were registered in these respective cases were different and distinct. In the complaint filed by Parvez Parwaz, which was registered as a FIR, names of the persons were mentioned and a general investigation was called for, while FIR 145/2007 registered by Hazrat, was against unknown persons for damage of his property, which was for a specific offence, without any other complaint or allegation of any communal instigation or riot. In other words, these were two different FIRs relatable to different occurrences, investigation of one was no way dependent upon the other and they are neither inter-linked nor inter-dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case. Thus, we have no hesitation in coming to the conclusion that lodging of the subsequent FIR was not a second FIR for the same occurrence as stated in FIR 145/2007, and thus, could be treated as a First Information Report for all purposes including investigation in terms of the provisions of the Code. It was not in the form of a statement under Section 162 of the Code. 16. Considering the decisions cited at the Bar, it is clear that when one FIR is lodged for the cognizable offence and it is under investigation, then, on the facts of the same transaction, second FIR cannot be filed, except in a the case where there is a cross complaint. It is also well settled that the 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. At this stage, the observation of the Apex Court in the case of Anju Chaudhary (supra), is relevant. In the case of Anju Chaudhary (supra), the Apex Court has observed in paras-40, 41 and 42 as under:- 40. It is true that law recognizes 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 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [ (2001) 4 SCC 350 ], held that the expression ‘same transaction’ from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. 41. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. 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”. 17. Now, considering the aforesaid legal preposition and considering the facts and circumstances of the present case, it appears that the first FIR came to be lodged on 23.08.2020 for the offence alleged to have been committed during the period from 22.08.2020 between 22.30 hours to 24.00 hours. This complaint is filed by Police Sub Inspector Prakashbhai Maganbhai Hathila for the offence under Sections 447, 448, 114 of the Indian Penal Code, Sections 25(1-A), 25(1-B)(A), 29 of the Arms Act and Section 135 of the Gujarat Police Act. This FIR has been lodged against four persons namely (1) Salimbhai Ibrahimbhai Theba; (2) Sajit Sultanbhai Theba; (3) Hanif Allarakha Darzada and (4) Umarbhai Kasambhai Patni, wherein it was alleged that the aforesaid four persons illegally entered in the flat of Sidhi Vinayak, Green Building No.D and they have found with weapons. This FIR has been lodged against four persons namely (1) Salimbhai Ibrahimbhai Theba; (2) Sajit Sultanbhai Theba; (3) Hanif Allarakha Darzada and (4) Umarbhai Kasambhai Patni, wherein it was alleged that the aforesaid four persons illegally entered in the flat of Sidhi Vinayak, Green Building No.D and they have found with weapons. As stated in the said FIR that one Rajubhai Ravjibhai Desai filed an application before the Police Commissioner, Sector 1, Surat that in his Siddhi Vinayak building, in block No.D certain persons have illegally entered in the house and it is occupied by them and, therefore, as per the instructions of the Additional Police Commissioner, the complainant Police Sub Inspector has, after detailed inquiry from Rajubhai Desai, went to the place from where all the four persons have been found along with certain weapons which came to be seized thereof and accordingly the detailed FIR has been lodged by the Police Sub Inspector for the alleged offence. On perusal of the said FIR, it appears that the FIR contains the details of the weapons and other materials seized from the four persons. 17.1. During the investigation of this FIR, the concerned Police Inspector has also made a report to the concerned Magistrate for addition of Section 452 read with Section 120(B) of the Indian Penal Code. 18. Whereas, on perusal of the second FIR impugned in this case is lodged by Rajubhai Ravjibhai Desai, who has earlier filed an application to the Additional Police Commissioner, Surat. In his FIR dated 24.08.2020, he has narrated various incidents which have been happened during the period from 03.06.2015 to 22.08.2020. He has narrated the fact that the accused therein have threatened him and, there was money landing by the accused and they have threatened the complainant, not only in Surat but he was also called at Village: Ribada, Taluka: Gondal, District: Rajkot as well as in another places also. On reading of the said FIR, it appears that the accused, who have named in the first FIR, are also shown as accused in addition to further accused no.1 to 6. The impugned FIR is against ten persons with specific allegations against accused no.1 to 6 and thus, accused, who have named in the first FIR, are also included in the second FIR. The impugned FIR is against ten persons with specific allegations against accused no.1 to 6 and thus, accused, who have named in the first FIR, are also included in the second FIR. The allegation in the second FIR is that there was money lending by the accused to the complainant for an amount of Rs.4 Crore and for recovery thereof, they have increased rate of interest, and that amount i.e. Rs.6 Crore has been paid and in lieu thereof they have got executed document for handing over the property by the complainant. The averments in the FIR of the Rajubhai Desai containing various details of the incident which has happened to the him. This FIR is lodged under Sections 143, 147, 149, 447, 448, 452, 387, 506(2), 120(B) of the Indian Penal Code, Section 25(1-A), 25(1-B)(A), 29 of the Armas Act, Sections 38, 39 and 40 of the Gujarat Money Lending Act and Section 135 of the Gujarat Police Act. The second FIR is registered as C.R.No.11210008201208 of 2020 dated 24.08.2020, whereas, the first FIR is registered as C.R.No.11210008201206 of 2020 dated 23.08.2020. 19. On reading of contents of both the FIR conjointly it clearly reveals that the same is not arising out of the same transaction. It further reveals that in the first FIR, there is no mentioned regarding the advancement of Rs.4 Crore to the complainant and of execution of the document of the property in favour of the accused named in the second FIR. It also reveals that in the first FIR, there is no averment regarding various threats given to the complainant and in the second FIR, various places including Village: Ribada, Taluka: Gondal, District: Rajkot is mentioned. The complainant of first FIR is Police Sub Inspector and he has merely named four accused who have been found from block No.D, Siddhi Vinayak Flat, whereas, in the second FIR, the incidents happened with the complainant during last four to five years has been narrated and the complaint has been filed by the original victim of the crime. Therefore, on reading of both the FIR in juxta position, it clearly appears that though four accused, who have been named in the first FIR, are also named in the second FIR is not a ground to set aside the second FIR. Further, considering both the FIRs, it is clearly found that both are not from the same transaction. Therefore, on reading of both the FIR in juxta position, it clearly appears that though four accused, who have been named in the first FIR, are also named in the second FIR is not a ground to set aside the second FIR. Further, considering both the FIRs, it is clearly found that both are not from the same transaction. In the present case, the incidents narrated in both the FIRs are relating to different type of incidents with involvement of different persons. In view of the test which has to be applied as per the observation of the Apex Court in the case of Anju Chaudhary (supra) made in para-42. The test 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. The second FIR may be treated as part of the central investigation. By applying the aforesaid principles, in the present case, it is crystal clear that the impugned FIR cannot be treated to be based on the same facts/transaction. The impugned FIR is sustainable in the eyes of law and same is maintainable. Both the FIRs are based on different action. 20. For the foregoing reasons, the present petition is devoid of merits and the same is liable to be dismissed. Accordingly, it is dismissed. Notice is discharged.