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2022 DIGILAW 1802 (GUJ)

Yakub Ahmad Jakaria v. State Of Gujarat

2022-12-16

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. By way of the present petition, the petitioners has prayed to quash and set aside the F.I.R. being C.R. No.I-11 of 2017 registered with Vedach Police Station, District : Bharuch. 2. Mr. Majmudar, the learned advocate appearing for the petitioners raised a short point for the consideration of this Court that the F.I.R. in question is a continuation of the F.I.R., which was registered by the respondent-authority being F.I.R. No.I-41 (N) II- 17 of 2016, which is pending investigation before the respondent-authority. 2.1. Mr. Majmudar, the learned advocate appearing for the petitioners submitted that the present F.I.R. being C.R. No.I-11 of 2017, registered with Vedach Police Station, District : Bharuch, is filed for offences punishable under Sections 465, 467, 468, 471 and 120B of the Indian Penal Code, 1860 and the earlier F.I.R. being C.R. No.II-17 of 2016, which is registered with the same Police Station for offences punishable under Sections 2(16), 2(36), 9, 49(a)(b), 50, 51(1) of the Animal Conservation Act, 1972 and Sections 29 and 30 of the Arms Act and Section 135 of the G.P. Act, 1951. The allegations in both the F.I.Rs as stated above are levelled against the petitioners herein, who are accused of F.I.R. being C.R. No.-II 17 of 2016 and the present F.I.R. being C.R. No.I-11 of 2017. It is alleged that the applicants herein - original accused and accomplices stole Bolero Pick Up Car bearing Registration No. GJ-20-V-2026 and that forged the number plate and have produced R.C. Book of the said car in connection with the said F.I.R. and have tried to mislead the respondent-authority. 2.2. It is submitted by the learned advocate Mr. Majmudar that Bolero pick-up car No. GJ-20-V-2026 has been stolen by the original accused Saied Ismail and his accomplices and they have used forged number plate and have produced the R.C. book of the said car in connection with the said F.I.R. and have tried to mislead the police. With the aforesaid and certain other allegations, the impugned F.I.R. is filed. 2.3. It is further submitted by the learned advocate Mr. With the aforesaid and certain other allegations, the impugned F.I.R. is filed. 2.3. It is further submitted by the learned advocate Mr. Majmudar that earlier F.I.R. i.e. C.R. No. II-17 of 2016 was registered against 10 accused persons alleging that on 24.06.2016 the alleged offences were committed by the original accused persons by shooting with a 12 bore gun and by killing peacocks and by using its meat and other body parts and, therefore, the said F.I.R. was registered. 2.4. It is further submitted by the learned advocate Mr. Majmudar that one more criminal complaint is registered under the Animal Conservation Act, 1972, being F.I.R. No.I-11 of 2017 as stated above, and the impugned F.I.R. i.e. second F.I.R. being C.R. No.II-17 of 2016 is registered after a substantial delay on 25.07.2017 for the alleged offences as stated above. 2.5. Placing reliance on the above submissions, learned advocate Mr. Majmudar has submitted that there cannot be a second F.I.R. in respect of the same offence/event, in view of the fact that whenever any further information is received by the Investigating Agency, it is always in furtherance of the first F.I.R. Learned advocate Mr. Majmudar has further submitted that in view of above, the impugned F.I.R. being a second F.I.R. arising out of the same incident is required to be quashed and set aside. 3. Learned APP Ms. Mehta was not in a position to controvert the submissions advanced by the learned advocate Mr. Majmudar appearing for the petitioners. 4. Heard learned advocate appearing for the respective parties. 5. The submissions advanced by learned advocate Mr. Mr. Majmudar requires consideration, in view of the fact that the first F.I.R. came to be registered against the applicants-original accused as stated above being F.I.R. No.C.R.II No.17 of 2016 and the second F.I.R. came to be filed for the same incident being impugned F.I.R. in question at this stage. 6. At this stage, It would be apposite to refer the following decisions : (i) State of Haryana and Ors. vs. Ch. Bhajanlal and Ors. reported in 1992 Supplementary 1 SCC 335/AIR 1992 Supreme Court 604, Para 108 is required to be reproduced : “108. 6. At this stage, It would be apposite to refer the following decisions : (i) State of Haryana and Ors. vs. Ch. Bhajanlal and Ors. reported in 1992 Supplementary 1 SCC 335/AIR 1992 Supreme Court 604, Para 108 is required to be reproduced : “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised: 1. where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; 2. where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; 3. where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; 4. where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; 5. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; 6. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; 6. where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; 7. where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” (ii) Amitbhai Anilchindra Shah vs. The Central Bureau of Investigation and Anr. Reported in (2013) 4 AIR JharR 256, para 32 is required to be reproduced : “32) 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 (supra), 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 CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 Cr.PC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 Cr.PC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 CrPC. 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 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. 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 CrPC. 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 CrPC 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. There cannot be any controversy that sub-section (8) of Section 173 CrPC 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 CrPC 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.” 7. Considering the facts and circumstances of the case and ratio laid down by the Hon’ble Apex Court, as referred above, the present F.I.R. being I-11 of 2017, in the opinion of this Court is continuation of the investigation, which was initiated by registering F.I.R. being C.R. No.II-17 of 2016. 8. In view of above, the Second F.I.R. being CR No.I- 11 of 2017, registered with Vedach Police Station, District : Bharuch is held to be not maintainable. This Court is exercising its powers under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India. This Court deem it fit to quash the impugned F.I.R. being C.R. No.II-17 of 2016. 8.1. Hence the impugned F.I.R. being C.R. No.I-11 of 2017 is not maintainable and the earlier F.I.R. being C.R. No.II-17 of 2016 is hereby quashed and set aside. This Court deem it fit to quash the impugned F.I.R. being C.R. No.II-17 of 2016. 8.1. Hence the impugned F.I.R. being C.R. No.I-11 of 2017 is not maintainable and the earlier F.I.R. being C.R. No.II-17 of 2016 is hereby quashed and set aside. Hence, the present petition is disposed of accordingly. 9. The liberty is reserved for the respondent-authority to take appropriate steps in accordance with law for requesting the concerned Court to add the sections and the concerned Court may consider the same in accordance with law. 10. It is open for both the sides to take all the contentions as available under the law. Once the Court had held the second F.I.R. to be not maintainable, this Court does not deem it fit opine on the merits of the matter.