Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 561 (RAJ)

Keshar v. State of Rajasthan

2023-02-17

KULDEEP MATHUR

body2023
ORDER 1. By way of filing present criminal miscellaneous petition under Section 482, Cr.P.C., the petitioner has prayed that the impugned order dated 14.02.2017 passed by learned Chief Judicial Magistrate, Barmer, and FIR No. 391/2016 lodged at P.S. Kotwali, District Barmer may be quashed and set aside. 2. Briefly stated facts of the case are that an FIR No.9/2015 was registered against the petitioner at PS Gadra Road, District Barmer for offences under section 191, 192, 193, 197, 198, 199, 200, 420, 467, 468, 471 and 120B IPC. The basic crux of the FIR was that the petitioner No.1 had contested the elections for Sarpanch of Gram Panchayat, Shahdad ka Par on the strength of forged documents. The petitioner No.2 conspired in procuring the forged documents and committed other crimes as alleged in the FIR. The Investigating Agency after making thorough investigation submitted charge sheet against the petitioners for offences under Sections 420, 467, 468, 471 and 120B of the IPC. 3. While, the petitioners were facing trial before the competent criminal court in relation to FIR No.9/2015, the respondent No.2 filed a complaint before learned Chief Judicial Magistrate, Barmer under Section 156(3) Cr.P.C for the same allegations on the ground that a forged and fabricated verification report was prepared so that the forged mark-sheet prepared in favour of the petitioner, could be used as a true and genuine document. 4. The Investigating Agency submitted negative final report No.162/2016 in FIR No. 391/2016 lodged PS Kotwali, District Barmer. The respondent No.2 thereupon filed an application under section 173(8) Cr.P.C. seeking a direction upon police to make further investigation upon certain issues. The Chief Judicial Magistrate vide order dated 14.02.2017, allowed the application filed by respondent No.2 and directed investigating agency to make further investigation as provided under Section 173(8) Cr.P.C. on certain issues mentioned in paragraphs 11, 12, 13 of the application submitted by the respondent No.2. 5. Assailing the order dated 14.02.2017 and FIR No.391/2016, learned counsel for the petitioner submitted that after making thorough investigation in relation to FIR No.9/2015 registered at PS Gadra Road, District Barmer, a charge sheet against the petitioner under Section 420, 467, 468, 471 and 120B of IPC had already been filed. The second FIR on same facts is not maintainable. Assailing the order dated 14.02.2017 and FIR No.391/2016, learned counsel for the petitioner submitted that after making thorough investigation in relation to FIR No.9/2015 registered at PS Gadra Road, District Barmer, a charge sheet against the petitioner under Section 420, 467, 468, 471 and 120B of IPC had already been filed. The second FIR on same facts is not maintainable. Learned counsel submitted that learned Chief Judicial Magistrate instead of passing order dated 14.02.2017 could have directed the Investigating Agency to make further investigation in the earlier FIR No.9/2015 of PS Gadra Road in which charge sheet was filed. Learned counsel submitted that if the impugned order dated 14.02.2017 is allowed to sustain, then the same will amount to gross abuse of process of court. Reliance was placed on the judgment rendered by Hon’ble the Supreme Court in the case of T.T. Anthony vs. State of Kerala reported in (2001) 6 SCC 181 . 6. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the present criminal miscellaneous petition filed under Section 482, Cr.P.C. Heard learned counsel for the parties and perused the material available on record. Hon’ble the Supreme Court in the case of T.T. Anthony (supra) held as under:- "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 a further 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 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. may, 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." 7. In the present case, the second FIR No.391/2016 registered at P.S. Kotwali, District Barmer relates to verification of forged mark-sheet prepared in favour of the petitioner so that it could be used as a true and genuine document. Admittedly, in FIR No.9/2015 registered at PS Gadra Road, Barmer which relates to same offence/allegation arising out of same incident, charge sheet against petitioners has already been filed before competent criminal court. 8. Having gone through the afore-quoted precedent law, this Court has no hesitation in coming to the conclusion that there can be no second F.I.R. on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. In case, the Investigating Officer after conclusion of investigation comes across any further information pertaining to the same incident, he can make further investigation and forward the further evidence along with further report/reports under Section 173(8) of Cr.P.C. 9. In the result, the order dated 14.02.2017 passed by learned Chief Judicial Magistrate, Barmer, and FIR No. 391/2016 lodged at P.S. Kotwali, District Bikaner call for interference by this Court in exercising of its powers under Section 482 Cr.P.C. and the same are hereby quashed and set aside. 10. It is however made clear that this order will not preclude the investigating agency from making further investigation and filing further report in relation to FIR No.9/2015 registered at PS Gadra Road, Barmer in accordance with law, if any. 11. Consequently, the criminal miscellaneous petition stands allowed with no order as to costs.