Quashed

Gopal Sharma and Ors. v. State of Raj and Ors.

Rajasthan HC7 Aug 2018CRLMP/2321/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan quashed a duplicate FIR (No.100/2018) registered on identical allegations where the first FIR (No.360/2017) resulted in a charge-sheet. Relying on Supreme Court precedents, the court held duplicate FIRs are impermissible, granting liberty to file a supplementary report under Section 173(8) CrPC.

What did the court decide?

FIR No.100/2018 quashed; liberty granted to Investigating Officer to file supplementary chargesheet in FIR No.360/2017.

Gopal Sharma and Ors. Vs State of Raj and Ors. — Quashing and FIR | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 2321/2018

Gopal Sharma And Ors

----Petitioner

Versus

State Of Raj And Ors

----Respondent

Connected With

S.B. Criminal Miscellaneous (Petition) No. 4195/2018 Siyaram Yadav S/o Shri Manfool Yadav

----Petitioner

Versus

State Of Rajasthan

----Respondent

For Petitioner(s)	: Mr. Krishan Sharma in Petition No.2321/2018 Mr. Ajay Shukla in Petition No.4195/2018
For Respondent(s)	: Mr. Prakash Thakuriya, PP for State Mr. Vipul Kumar Jaiman, for respondents

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HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Order

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07/08/2018

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By this common order, S.B. Criminal Misc. Petition No.2321/2018 preferred by Gopal Sharma, Shankar Lal Sharma and Radha Mohan, and S.B. Criminal Misc. Petition No.4195/2018 filed by Siyaram Yadav, shall be decided together.

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Regarding execution of an agreement to sell for sale of land, Ghasi Lal Sharma had earlier lodged case FIR No.360/2017 at Police Station Kanota, Jaipur City (East). Admittedly, on the same set of allegations, Shanti Devi, daughter-in-law of Ghasi Lal Sharma has lodged the second FIR bearing No.100/2018 at same

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[CRLMP-2321/2018]

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(2 of 8)

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Police Station Kanota, Jaipur City (East) for offences under Sections 420, 406, 467, 468, 471, 120B IPC. The proceedings arising out of FIR No.360/2017 are still pending.

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This court on 15.05.2018 had passed the following order:-

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“The learned counsel for the petitioner has contended that the petitioner alongwith other co-accused executed agreement to sell on 11.7.2014 in favour of the complainant/respondent no.2. The learned counsel for the petitioner has contended that qua the agreement to sell, earlier father-in-law of respondent no.2 lodged FIR No. 360/2017 at Police Station Kanota. The learned counsel for the petitioner has contended that in the said FIR No. 360/2017, charge-sheet was filed in the court of concerned Magistrate on 21.12.2017 and the petitioner obtained bail from the competent court. The learned counsel for the petitioner further contended that in the FIR No. 360/2017, statement of respondent no.2 has been recorded under Section 161 Cr.P.C. and same is part of the charge-sheet filed in FIR No. 360/2017.

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The learned counsel for the petitioner has contended that subsequently on same allegations second FIR has been lodged by the complainant/respondent no.2 bearing FIR No.100/2018 at Police Station Kanota. The learned counsel for the petitioner has contended that qua same transactions and same allegations second FIR is not permissible. The learned counsel for the petitioner has relied upon the case of Amit Bhai Anilchandra vs. Central Bureau of Investigation & Anr., (2013) 6 SCC 348 . Issue notice to the respondents for 7.8.2018.

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List this case on 7.8.2018. Till then, further proceedings arising out of impugned FIR No. 100/2018 registered at Police Station Kanota shall remain stayed.”

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In terms of above said order, Shri Prakash Thakuriya, learned Public Prosecutor, has caused appearance for respondent No.1 and Shri Vipul Kumar Jaiman has caused appearance for complainantrespondent No.2.

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Learned counsel for the parties are in agreement that qua same property, between the same parties, an agreement was executed which is subject matter in case FIR No.360/2017, registered at Police Station Kanota, Jaipur City (East). It is stated that in the first FIR bearing No.360/2017, chargesheet has already

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[CRLMP-2321/2018]

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(3 of 8)

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been filed. Except that in the second FIR bearing No.100/2018 name of the complainant is different, rest all particulars in the first FIR are same.

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After hearing learned counsel for the parties and considering the judgment rendered by this court in Brajraj Singh v. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No.1748/2018, decided on 02.05.2018, the impugned FIR is quashed. It may be noted that in the case of Brajraj Singh (supra), this court held as under:-

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“7. It will be appropriate to reproduce following observations made by the Supreme Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., (2013) 6 SCC 348:

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“37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. ( emphasis supplied) 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:

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The scheme of Code of Criminal Procedure is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Code of Criminal Procedure on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion Under Section 169 or 170 Code of Criminal Procedure, as the case may be, and forward his report to the Magistrate concerned Under Section 173(2) Code of Criminal Procedure. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further

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[CRLMP-2321/2018]

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(4 of 8)

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investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of Sub-section (8) of Section 173 Code of Criminal Procedure. (emphasis supplied)

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From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Code of Criminal Procedure only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Code of Criminal Procedure. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.( emphasis supplied) On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Code of Criminal Procedure.

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A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that Sub-section (8) of Section 173 Code of Criminal Procedure empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. (emphasis supplied) 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

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[CRLMP-2321/2018]

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(5 of 8)

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investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report Under Section 173(2) Code of Criminal Procedure. It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal Procedure, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report Under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power Under Section 482 Code of Criminal Procedure or under Articles 226/227 of the Constitution.

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The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.

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In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior Counsel for the Petitioner, in Ramlal Narang (supra), the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case. .

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58.1. 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

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[CRLMP-2321/2018]

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(6 of 8)

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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.

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58.2 The various provisions of the Code of Criminal Procedure clearly show that an officer-incharge 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.

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58.3 Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally with the leave of the Court and where during further investigation, he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports which is evident from Sub-section (8) of Section 173 of the Code. (emphasis supplied) 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. (emphasis supplied)

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58.4 Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House Diary, the officer-incharge 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

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[CRLMP-2321/2018]

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(7 of 8)

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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.

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58.5 First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.” (emphasis supplied)

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In view of the judgment rendered by the Supreme Court in Anilchandra Shah Vs. Central Bureau of Investigation & Anr. (supra), which has been followed by this Court in Bhori Lal @ Bhoriya Vs. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No.1275/2018, decided on 04.04.2018, impugned FIR is quashed subject to liberty to the Investigating Officer to file a supplementary report under Section 173(8) Cr.P.C. in the first FIR in which final report in negative form has already been accepted as complainant to the present FIR is also entitled to file a protest petition to demonstrate before the Court of the Magistrate that in his complaint no civil dispute is discernible and the accused have committed cognizable offences.

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On basis of impugned FIR (Annexure-4) which has been quashed, Mr. Nahar Singh, S.I./Investigating Officer, if so advised or on his own accord would submit a supplementary report of investigation in the Court of concerned Magistrate within one month from today. It will be open for the Investigating Officer to give his opinion along with the report of investigation whether accused is to be prosecuted or not and whether dispute is civil in nature or not?”

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Considering that in FIR No.360/2017, registered at Police Station Kanota, Jaipur City (East), chargesheet has already been

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[CRLMP-2321/2018]

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(8 of 8)

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filed and the court is seized of the matter, present petitions are accepted and the impugned FIR bearing No.100/2018, registered at Police Station Kanota, Jaipur City (East) is quashed with liberty to the Investigating Officer to file supplementary chargesheet in FIR No.360/2017, registered at Police Station Kanota, Jaipur City (East), if he formulate opinion that some important facts could not be brought to light, for consideration of the court.

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(KANWALJIT SINGH AHLUWALIA),J

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Govind/

Gopal Sharma and Ors. v. State of Raj and Ors.

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Gopal Sharma and Ors. v. State of Raj and Ors.

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