This court dismissed a petition seeking to quash an FIR registered against the petitioner for extortion. The court held that a subsequent FIR was maintainable as new facts and details regarding a conspiracy emerged during an administrative enquiry not fully explored in the initial investigation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No.3646/2021
Kamlesh Kumar Khandelwal S/o Shri Ram Avtar Khandelwal, R/o 9-A Taj Colony, Adarsh Nagar, Tonk.
----Petitioner
Versus
State of Rajasthan, through Public Prosecutor.
----Respondent
For Petitioner(s) : Mr.Manu Bhargava, Adv. For Respondent(s) : Mr.Sher Singh Mahala, Public Prosecutor.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
REPORTABLE
21/10/2021
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.
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(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
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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. 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
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to file a protest petition. The matter is said to be subjudice before the Court for considering the protest petition.
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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 accusedpetitioner 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.
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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.
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the same report of different telephone numbers being used for transfer of money, the said FIR was lodged.
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alleged by complainant independently in respect of specific allegations, which are made in the subsequent FIR.
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“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.”
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. [(2004)13 SCC 292] and Surender Kaushik &
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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.
(ASHOK KUMAR GAUR), J
Himanshu Soni/Parul/30
3 issues framed by the court
Whether a subsequent FIR can be maintained when new facts and details of a criminal conspiracy are discovered after an investigation into an earlier FIR on similar allegations was closed.
Whether the quashing of an FIR is appropriate where the complainant filed a protest petition challenging the final report of the police investigation.
Whether allegations of extortion and conspiracy by jail officials involving money transfers via mobile phones warrant proper investigation or quashing.
Colour shows how this judgement treated each authority
T.T. Antony Vs. State of KeralaReferred¶39
T.T. Antony Vs. State of Kerala [2001 Law Suit (SC) 884]
Babubhai Vs. State of Gujarat & Ors.Referred¶39
Babubhai Vs. State of Gujarat & Ors. [2010 Law Suit (SC) 565]
Rameshwar & Anr. Vs. Additional Chief Judicial Magistrate & Ors.Referred¶39
Rameshwar & Anr. Vs. Additional Chief Judicial Magistrate & Ors.
Nirmal Singh Kahlon Vs. State of Punjab & Ors.Referred¶75
Nirmal Singh Kahlon Vs. State of Punjab & Ors. [(2009)1 SCC 441] · Who else cites this
P. Sreekumar Vs. State of Kerala and Ors.Referred¶77
P. Sreekumar Vs. State of Kerala and Ors. [(2018)4 SCC 579] · Who else cites this
Upkar Singh Vs. Ved Prakash & Ors.Referred¶81
Upkar Singh Vs. Ved Prakash & Ors. [(2004)13 SCC 292] · Who else cites this
Surender Kaushik & Ors. Vs. State of U.P. & Ors.Referred¶81
Surender Kaushik & Ors. Vs. State of U.P. & Ors. [(2013)5 SCC 148] · Who else cites this
Kamlesh Kumar Khandelwal
State of Rajasthan
ASHOK KUMAR GAUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
