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Rajasthan High Court · body

2021 DIGILAW 1994 (RAJ)

Kamlesh Kumar Khandelwal v. State of Rajasthan

2021-10-21

ASHOK KUMAR GAUR

body2021
ORDER 1. The instant criminal petition has been filed by the petitioner for quashing FIR No. 130/2021 registered at Police Station Kotwali, Tonk. 2. The brief facts of the present petition are as under:- (i). One complainant-Rajendra Singh Tomar filed a complaint under Section 156 (3) of Cr.P.C. wherein allegation was levelled that there were certain jail inmates in the District Jail, Tonk and these persons were indulging in extortion of money from the other inmates by using their undue influence. (ii). The complainant had specifically pleaded that certain persons namely, Meghraj Jat, Rajesh Chaiwala & Ram Pandey and all the officers and employees of District Jail, Tonk were involved in commission of such crime. (iii). The complainant further narrated the fact of giving beating to the jail inmates if the money was not transferred in account of certain persons and as such, complaint was filed for taking cognizance for offences said to be committed under Sections 323, 341, 506, 342, 351, 352, 374, 119, 120, 120-B, 161, 162, 166, 384, 385 & 34 of IPC and under Sections 7, 8, 13(1) & 13(2) of the Prevention and Corruption Act, 1988 (hereafter the 'Act of 1988'). (iv). The said complaint filed by the complainant was sent to the Police for investigation and Police thereafter lodged an FIR No.293/2020 on 09.09.2020 for offences under Sections 323, 341, 506, 342, 351, 352, 374, 119, 120, 120-B, 161, 162, 166, 384, 385 & 34 of IPC and under Sections 7, 8, 13(1) & 13(2) of the Act of 1988. (v). The police after registration of FIR, made one Meghraj Jat, Rajesh Chaiwala and Ram Pandey as accused and further wrote in the column of accused persons at Serial No. 4-Samast Jail Adheekari Karmachari. The Police after registration of FIR conducted investigation and submitted final report. (vi). The police after investigation found that there was no allegation proved during the statements recorded under Section 161 Cr.P.C. that any incident relating to giving beating to inmates of jail was committed and no such complaint was ever found to be received by the Police Authorities by any of the inmates. (vii). The investigation further revealed that offences under Sections 7, 8, 13(1) & 13(2) of the Act of 1988 was prima facie committed and as such, investigation was handed over to one ASI-Prabhu Singh Rajawat. (vii). The investigation further revealed that offences under Sections 7, 8, 13(1) & 13(2) of the Act of 1988 was prima facie committed and as such, investigation was handed over to one ASI-Prabhu Singh Rajawat. The Civil Police recorded in its final report that since it did not have any jurisdiction to take cognizance for offences said to be committed under the Act of 1988 and as such, the case was said to be wrongly registered by the Police under the Act of 1988 and in absence of any evidence of commission of any offence, the Final Report was submitted to the Court concerned. While the final report was submitted before the Court, it was recorded therein that the Public Prosecutor has filed the final report as the case was found to be of civil nature. (viii). The complainant raised the objection for acceptance of final report and as such, he wanted time to file a protest petition. The matter is said to be sub-judice before the Court for considering the protest petition. 3. Learned counsel for the petitioner submitted that on the same set of facts, one FIR No. 130/2021 was registered on 22.03.2021 by the same complainant under Section 384 IPC. In the said FIR, details of different mobile numbers were given in respect of transaction of money in account of certain accused persons including the present petitioner, where the total sum of Rs. 16,68,000/- was found in the account of the present petitioner. 4. Learned counsel for the petitioner has further drawn attention of this Court that after registration of FIR, letter was written on 26.03.2021 by SHO, Police Station Kotwali, Tonk to ACJM, Tonk whereby it was informed that inadvertently in the FIR, name of the complainant was wrongly written as 'Rajendra Singh Tomar' and as such, name of the complainant one 'Shri Alok Kumar Vashishtha, Inspector General of Police (Prison), Jaipur' may be mentioned in the FIR. On the basis of said communication, the name of the complainant was changed and Inspector General of Police (Prison), Jaipur was named as the complainant/informant and case was registered under same section i.e. under Section 384 of IPC and FIR also remained the same. 5. Learned counsel for the petitioner Mr. On the basis of said communication, the name of the complainant was changed and Inspector General of Police (Prison), Jaipur was named as the complainant/informant and case was registered under same section i.e. under Section 384 of IPC and FIR also remained the same. 5. Learned counsel for the petitioner Mr. Manu Bhargava has raised the following submissions before this Court while assailing the FIR registered against the petitioner that: (i) once FIR No.293/2020 was registered against certain accused persons, the Police Authorities could not have registered subsequent FIR No.130/2021 on the same allegations and further no investigation can be carried out by the Police on the same allegations as mentioned in the FIR No.130/2021. (ii) Once the final report is a subject matter of challenge before the competent Criminal Court and time has been sought for filing the protest petition, the registration of FIR on the same facts cannot act against the interest of the present accused-petitioner and outcome of the protest petition will decide the culpability of the present petitioner as whether he can be made accused or any offence has been committed by the petitioner or not. (iii) The power given to the Police to register the First Information Report (FIR) necessarily requires that the allegations which are levelled in respect of the commission of particular crime, must not be repeated by the complainant only by change of name of the complainant in subsequent FIR. 6. Learned counsel for the petitioner has also placed reliance on the judgments of the Apex Court in the case of T.T. Antony Vs. State of Kerala reported in [2001 Law Suit (SC) 884] decided on 12.07.2001 & Babubhai Vs. State of Gujarat & Ors. reported in [2010 Law Suit (SC) 565] decided on 26.08.2010 and judgment of the Rajasthan High Court in S.B. Criminal Misc. (Petition) No.88/2013 titled as Ramesh war & Anr. Vs. Additional Chief Judicial Magistrate & Ors. decided on 07.01.2014. Counsel on the strength of said judgments submitted that there is total abuse of process of law in criminal matters by the Police and as such, this Court may quash the FIR, which has been registered against the petitioner. 7. Learned Public Prosecutor submitted that the present criminal petition filed by the petitioner may not be entertained by this Court as there is direct involvement of the accused-petitioner in commission of crime under Section 384 IPC. 8. 7. Learned Public Prosecutor submitted that the present criminal petition filed by the petitioner may not be entertained by this Court as there is direct involvement of the accused-petitioner in commission of crime under Section 384 IPC. 8. Learned Public Prosecutor submitted that Police during investigation has clearly found that there has been a transaction of money on the mobile phone number of the petitioner and as such, the petitioner who is a petty kiosk holder, cannot have transaction of Rs. 16,68,000/-. 9. Learned Public Prosecutor submitted that during investigation it has come to the notice that on different dates, such money was transferred through Paytm App by the inmates of jail and as such, the entire racket was involved in commission of crime. 10. Learned Public Prosecutor further submitted that this kind of extortion of money from the jail inmates either to give them proper facilities or not to beat them, is a crime of serious nature, which has been committed by different persons and there is a direct involvement of the petitioner and as such, the petitioner is not entitled for any relief from this Court. 11. Learned Public Prosecutor further submitted that the allegation levelled in the FIR clearly makes out a case that the petitioner is prima facie involved and as such, quashing of FIR can be done by this Court only in rarest of rare cases, where no prima facie allegation, establishes any commission of crime. 12. I have heard learned counsel for both the parties and perused the material available on record. 13. This Court finds that the complaint was initially filed by the complainant, later on, FIR came to be registered as FIR No.293/2020 and Police conducted the investigation and found that the allegation of commission of offences under Sections 323, 341, 506, 342, 351, 352, 374, 119, 120, 120-B, 161, 162, 166, 384, 385 & 34 of IPC and under Sections 7, 8, 13(1) & 13(2) of the Act of 1988, were not made out as there was no statement recorded which clearly revealed commission of any offence. 14. This Court on careful reading of the Final Report finds that the Police conducted the investigation in the most casual manner and it did not bother to take into account the statements of the persons/inmates, who had transferred the amount in different accounts of the accused. 15. 14. This Court on careful reading of the Final Report finds that the Police conducted the investigation in the most casual manner and it did not bother to take into account the statements of the persons/inmates, who had transferred the amount in different accounts of the accused. 15. This Court further finds that the Final Report also mentions that the complaint was examined by some District Executive Officer of Zila Parishad, Tonk and he had sent the same report to the District Collector, Tonk and such report was annexed with the final report. 16. This Court is at loss to understand as in what manner the report which was prepared by the District Executive Officer, Zila Parishad, Tonk and the final report of District Collector, Tonk was taken care of, by the Police while concluding the investigation. 17. This Court further finds that the offences which were alleged to be committed under the Prevention of Corruption Act, were also said to be not within the jurisdiction of Civil Police and as such, one ASI was assigned the job of investigation of such offences, however, final report was filed by observing that the due to lack of evidence, no case was made out. 18. This Court is restraining itself from commenting more in detail about the manner in which the Police has conducted the investigation in the present matter. 19. The facts of the case further reveal that after filing of the Final Report, FIR No.130/2021 has been registered on 22.03.2021 and specific details have been given as in what manner the different mobile numbers were used for transferring the amount and in what manner, the inmates were given threatening and beating in the jail if they did not transfer the amount to the people who are involved in commission of such serious crime. 20. The perusal of FIR shows that administrative enquiry was done by the Additional Chief Executive Officer, Zila Parishad, Tonk and on his report, the Additional Director General of Police got the technical enquiry conducted through SOG and after getting the same report of different telephone numbers being used for transfer of money, the said FIR was lodged. 21. 20. The perusal of FIR shows that administrative enquiry was done by the Additional Chief Executive Officer, Zila Parishad, Tonk and on his report, the Additional Director General of Police got the technical enquiry conducted through SOG and after getting the same report of different telephone numbers being used for transfer of money, the said FIR was lodged. 21. This Court finds that FIR No. 130/2021 was registered wherein the name of complainant was mentioned as 'Rajendra Singh Tomar' and later on, Inspector General of Police (Prison) has been substituted as the complainant and case has been registered under Section 384 of IPC. 22. The submission of learned counsel for the petitioner that for the same allegation, subsequent FIR cannot be lodged, suffice it to say by this Court that as far as FIR No.293/2020 is concerned, the Police while conducting the investigation has only referred some report, without discussing the findings of the report said to be prepared by the Chief Executive Officer, Zila Parishad and report of the Collector and mentioned that due to lack of evidence, the final report is submitted. It is true that power of investigation lies with the Police, however, the Police Authorities cannot act in such an arbitrary manner when specific allegations are levelled against the Jails Officials who are said to be involved and the Police in a very casual manner files the Final Report. 23. The submission of learned counsel for the petitioner that once the Final Report is a subject matter of challenge as the same has not been accepted and protest petition is being filed by the Complainant and as such, the Police should not proceed in the subsequent FIR, this Court finds that the right of complainant to file protest petition and to decide whether the final report is to be accepted or not, will not change the commission of crime, which is alleged by complainant independently in respect of specific allegations, which are made in the subsequent FIR. 24. 24. The submission of learned counsel for the petitioner that the Apex Court has time and again deprecated the practice of lodging subsequent FIR for the same incident in respect of same occurrence and as such, there is a gross misuse of power of the Police, this Court finds that the facts which have come on record clearly reveal that the offences which are said to be committed by different persons in the FIR lodged as FIR No.293/2020, do not make out a clear case as in what manner the offences are committed by different persons. 25. This Court finds that now with subsequent FIR No. 130/2021, the complete details have been given by the complainant as in what manner the transaction of transfer of money has taken place and also the petitioner has specifically being named in the FIR, which has been registered by the Police. 26. The availability of new facts in respect of commission of crime, can be taken care of, by the complainant and same can be subject matter of investigation by the Police. 27. This Court finds that second FIR can be maintainable when there are different versions or discovery is made on factual foundations and such discovery may be made by the Police Authorities, at a subsequent stage. 28. The Apex Court in the case of Nirmal Singh Kahlon Vs. State of Punjab & Ors. reported in [ (2009)1 SCC 441 ], has held as under :- "67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged." 29. The Apex Court again in the case of P. Sreekumar Vs. State of Kerala and Ors. The Apex Court again in the case of P. Sreekumar Vs. State of Kerala and Ors. reported in [ (2018)4 SCC 579 ] has reiterated the principle that if the second FIR is lodged by different person, the same can be entertained by the Police. The relevant para of the said judgment is quoted, as hereunder :- "32. It is for the reasons that firstly, the second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Such was not the case here; Second, it was filed by the appellant as a counter-complaint against respondent No.3; Third, the first FIR was against five persons based on one set of allegations whereas the second FIR was based on the allegations different from the allegations made in the first FIR; and lastly, the High Court while quashing the second FIR/charge-sheet did not examine the issue arising in the case in the light of law laid down by this Court in two aforementioned decisions of this Court in the cases of Upkar Singh Vs. Ved Prakash & Ors. 1 (2004)13 SCC 292 ] and Surender Kaushik & Ors. Vs. State of U.P. & Ors. [ (2013)5 SCC 148 ] and simply referred three decisions of this Court mentioned above wherein this Court has laid down general principle of law relating to exercise of inherent powers under Section 482 of the Code." 30. This Court, in the present facts of the case, considering the nature of allegation and role of Police Officer in the Jail, finds that the matter needs to be properly investigated by the Authorities. 31. This Court does not find any ground to interfere in the present petition and accordingly, the present criminal misc. petition stands dismissed.