Gujarat High Court
Rajubhai Samabhai Kumkhaniya vs State Of Gujarat on 27 January, 2025
NEUTRAL CITATION
R/CR.MA/8944/2018 JUDGMENT DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 8944 of 2018
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
=======================================================
RAJUBHAI SAMABHAI KUMKHANIYA & ANR.
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR YJ PATEL(3985) for the Applicant(s) No. 1
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STATION for the
Respondent(s) No. 2
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/01/2025
ORAL JUDGMENT
1. Rule. Learned APP, Mr. Soaham Joshi for respondent
no.1 – State of Gujarat waives service of notice
of rule.
2. By way of preferring present application under
Section 482 of the Code of Criminal Procedure,
1973 (“CrPC” for short”), the applicant – original
accused no.2, seeks to invoke the inherent powers
of this Court, inter alia, praying for quashing
and setting aside First Information Report being
C.R. No. II-3002 of 2018 registered with Thangadh
Police Station, Surendranagar for the offence
punishable under Sections 427, 504 and 506(2) of
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the Indian Penal Code (“IPC” for short”) and under
Sections 25(1)1-B) of the Arms Act and subsequent
proceeding arising out of impugned FIR.
3. Heard learned Senior Counsel, Mr. Y.J. Patel for
the applicant and learned APP Mr. Soaham Joshi for
the respondent no.1 – State of Gujarat. Though
served, none appears for the respondent no.2 –
original complainant.
4. The gist of the FIR is as under,
On the day of incident i.e. on 29.04.2017,
the accused had abused the complainant and,
thereafter, fired gunshot upon the shutter of the
shop of the complainant and, thereafter,
threatened the complainant to kill him and also
caused damage to the shutter of the shop and
thereby the accused have committed alleged
offences.
5. Learned advocate for the applicant submitted that
the issue involved in this matter is of narrow
compass and essentially based on settled principal
of law. He submitted that in fact, for the one
incident, two different FIRs have been lodged. He
submitted that initially, an FIR being C.R. No.I-
25/2017 came to be lodged with Thangadh Police
Station on 29.04.2017 for theo ffences under
Sections 323, 324, 504, 506(2) and 114 of the IPC
alleging inter alia that on the day of incident
i.e. on 29.04.2017, the accused no.1 had asked the
complainant not to come infront of his shop and
also abused him and when the complainant had asked
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for pardon, the accused got excited and the
accused no.1 gave pipe blow on the left hand,
whereas, the accused nos.2 to 4 therein also
beaten him and threatened with dire consequence.
He submitted that thereafter the impugned FIR has
been lodged by the respondent no.2 herein for the
incident of the FIR lodged earlier on 01.02.2018
alleging inter alia that on the date of incident
i.e. on 29.04.2017, the accused had abused the
complainant and, thereafter, fired gunshot upon
the shutter of the shop of the complainant and,
thereafter, threatened with dire consequences. He
referred to the allegations leveled in the
impugned FIRs as well as FIR lodged earlier and
submitted that if the Hon’ble Court would make a
cursory glance upon the allegations leveled in
both FIR, in that event, it would be found out
that the allegations leveled in both FIRs are
similar in nature, which clearly goes on to show
that with a sole intent to harass the applicant,
the impugned FIR has been lodged, therefore, the
prosecution launched against the applicant is
required to be quashed and set aside.
6. Learned advocate submitted that in fact, in
connection with the FIR lodged earlier, the
investigation was carried out and subsequently,
chargesheet has been filed, which culminated into
Criminal Case No.402/2017 and, thereafter, the
trial had proceeded further and ultimately at the
end of day, an of acquittal has been passed by the
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learned Judicial Magistrate First Class, Thangadh,
copy of which is produced on record. He,
therefore, submitted that at the time of passing
said order of acquittal, the learned Magistrate
has taken into consideration all facts of the case
and on the basis of the material and evidence
available on record and after carefully
scrutinizing the same, the said order of acquittal
has been passed. He, therefore, submitted that in
the present case also, the chances of conviction
is very bleak looking to the material available on
record, therefore, the prosecution launched
against the applicant is required to be quashed
and set aside.
7. Learned advocate, at this stage, submitted that
the case of the applicant is squarely covered by
the decision of the Hon’ble Supreme Court in case
of T.T. Antony Vs. State of Kerala & Ors.,
reported in (2001) 6 SCC 181, wherein the Hon’ble
Supreme Court has considered the similar issue of
two FIRs for one incident and also quashed the FIR
registered subsequently. He has also placed
reliance upon the decision of the Hon’ble Supreme
Court in case of Amitbhai Anilchandra Shah Vs.
Central Bureau of Investigation & Anr., reported
in (2013) 6 SCC 348 and referring to the
observations made in the said decision, it is
submitted that the said decision is applicable to
the facts of the case. He has also placed reliance
upon the order dated 01.03.2017 passed by the
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Coordinate Bench of this Court in case of
Navinkumar Hargovindbhai Patel & Ors. Vs. State of
Gujarat & Anr. delivered in Criminal Misc.
Application No.32470/2016 and submitted that the
Coordinate Bench of this Court, after considering
the aforesaid decisions as well as other
decisions, has considered the case of the
applicant and thereby quashed the FIR impugned
therein.
8. On the other hand, learned APP Mr. Joshi appearing
for the respondent – State has vehemently opposed
the present application and submitted that bare
perusal of the allegations leveled in the impugned
FIR, prima facie case is made out against the
applicant. He submitted that both the incident
mentioned in the impugned FIR as well as earlier
FIR are different and there are two different FIRs
for two different incident, therefore, it cannot
be said that for one incident, two different FIRs
have been lodged. It is submitted that in
connection with first FIR, trial was proceeded
further and at the end of day, after full-fledge
inquiry, an order of acquittal has been passed,
therefore, in connection with the impugned FIR,
the applicant may be prosecuted so that correct
fact would come on surface and on the strength of
it, just and fair decision can be taken. He
further submitted that the decisions relied upon
by learned advocate for the applicant are not
applicable in the facts of the present case,
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therefore, unnecessary benefit may not be extended
to the applicant and on the contrary, this
application may be rejected as grave charges are
leveled against the applicant. It is, therefore,
urged that the present application may be
rejected.
9. Having heard learned advocates appearing for the
parties and having gone through the material and
evidence available on record, it is found out that
challenge to the subsequent FIR is given on the
ground that there can be no second FIR and no
fresh investigation on receipt of every subsequent
information in respect of the same cognizable
offence or same occurrence giving rise to one or
more cognizable offence.
10. It is found out from the allegations leveled in
the impugned FIR as well as FIR lodged prior
thereto that both the FIRs have been lodged for
the incident of 29.04.2017 alleging inter alia
identical allegations. Further as stated above, in
connection with the FIR lodged earlier, the
investigation was carried out and the trial was
proceeded further and at the end of trial, the
accused therein including the applicant herein has
been acquitted by the court concerned. Whereas in
connection with the impugned FIR, the present
application for quashing of the same has been
filed and at the time of admission, after
considering the submissions and the documents
produced on record, the Coordinate Bench of this
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Court stayed further investigation. I have also
considering the allegations leveled in both FIRs
and am of the considered opinion that there is no
different between the allegations in both FIRs and
same are same in verbatim, therefore, the impugned
FIR deserves to be quashed and set aside.
11. I have also considered the decision of the Hon’ble
Supreme Court in case of T.T. Antony (supra) as
well as in case of Amitbhai Anilchandra Shah
(supra), upon which reliance has been placed by
learned advocate for the applicant. I have also
considered the order dated 01.03.2017 passed by
the Coordinate Bench of this Court in case of
Navinkumar Hargovindbhai Patel & Ors. Vs. State of
Gujarat & Anr. delivered in Criminal Misc.
Application No.32470/2016, upon which reliance has
also been placed by learned advocate for the
applicant. It is required to be noted that the
Coordinate Bench of this Court in case of
Navinkumar Hargovindbhai Patel (supra) has
considered the decision of the Hon’ble Supreme
Court in case of T.T. Antony (supra) as well as in
case of Amitbhai Anilchandra Shah (supra) and
quashed and set aside the FIR impugned therein.
Relevant observations made by the Coordinate Bench
in the aforesaid order reads as under,
“9 The Supreme Court in the case of Amitbhai
Anilchandra Shah vs. C.B.I. and another [AIR
2013 SC 3794] has considered at length the
law on the subject by making a reference of
its earlier decisions on the subject which
includes T.T.Antony vs. State of Kerala
[AIR 2001 SC 2631] as well as Babubhai vs.
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State of Gujarat and others [2010(12) SCC
254]:
“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 CrPC, 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 subsection (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, 170Page 8 of 32
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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 subsection (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)Page 9 of 32
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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.”
33. Mr. Rawal, learned ASG, by referring
T.T. Anthony (supra) submitted that the said
principles are not applicable and relevant
to the facts and circumstances of this case
as the said judgment laid down the ratio
that there cannot be two FIRs relating
to the same offence or occurrence.
Learned ASG further pointed out that in the
present case, there are two distinct
incidents/occurrences, inasmuch as one
being the conspiracy relating to the
murder of Sohrabuddin with the help of
Tulsiram Prajapati and the other being
the conspiracy to murder Tulsiram
Prajapati a potential witness to the
earlier conspiracy to murder Sohrabuddin. We
are unable to accept the claim of the
learned ASG. As a matter of fact, the
aforesaid proposition of law making
registration of fresh FIR impermissible
and violative of Article 21 of the
Constitution is reiterated, reaffirmed in
the following subsequent decisions of this
Court:
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1. Upkar Singh vs. Ved Prakash (2004) 13 SCC
292
(2010) 12 SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011
SC 604
4. C. Muniappan vs. State of Tamil Nadu
(2010) 9 SCC 567.
In C. Muniappan (supra), this Court
explained consequence test, i.e., if an
offence forming part of the second FIR
arises as a consequence of the offence
alleged in the first FIR then offences
covered by both the FIRs are the same and,
accordingly, the second FIR will be
impermissible in law. In other words, the
offences covered in both the FIRs shall have
to be treated as a part of the first FIR. In
the case on hand, in view of the principles
laid down in the above referred decisions,
in particular, C. Muniappan (supra) as well
as in Chirra Shivraj (supra), apply with
full force since according to the CBI itself
it is the case where:
(i) The larger conspiracy allegedly
commenced in November, 2005 and culminated
into the murder of Tulsiram
Prajapati in December, 2006 in a fake
encounter;
(ii) The alleged fake encounter of
Tulsiram Prajapati was a consequence
of earlier false encounter of
Sohrabuddin and Kausarbi since
Tulsiram Prajapati was an eye
witness to the abduction and consequent
murders of Sohrabuddin and Kausarbi; and
(iii) Tulsiram Prajapati was allegedly kept
under the control of accused police
officers, as a part of the same conspiracy,Page 11 of 32
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till the time he was allegedly killed in a
fake encounter. In view of the factual
situation as projected by the CBI itself,
the ratio laid down by this Court in C.
Muniappan (supra), viz., merely because two
separate complaints had been lodged did not
mean that they could not be clubbed together
and one chargesheet could not be filed [See
T.T. Anthony (supra)].
35. Learned counsel for the petitioner has
placed reliance on the following decisions
of this Court which explained same
transaction:
i) Babulal vs. Emperor , AIR 1938 PC 130
ii) S. Swamirathnam vs. State of Madras, AIR
1957 SC 340
iii) State of A.P. vs. Kandimalla Subbaiah &
Anr., AIR 1961 SC 1241
iv) State of A.P. vs. Cheemalapati Ganeswara
Rao & Anr., AIR 1963 SC 1850
36. In Babulal (supra), the Privy Council
has held that if several persons conspire to
commit offences, and commit overt acts in
pursuance of the conspiracy (a circumstance
which makes the act of one the act of each
and all the conspirators), these acts are
committed in the course of the same
transaction, which embraces the conspiracy
and the acts done under it. The common
concert and agreement which constitute the
conspiracy, serve to unify the acts done in
pursuance of it.
37. In Swamirathnam (supra), the
following conclusion in para 7 is
relevant:
“7. On behalf of the appellant Abu Bucker it
was contended that there has been misjoinder
of charges on the ground that several
conspiracies, distinct from each other, hadPage 12 of 32
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been lumped together and tried at one trial.
The Advocate for Swamirathnam, however, did
not put forward this submission. We have
examined the charge carefully and find no
ground for accepting the contention raised.
The charge as framed, discloses one single
conspiracy, although spread over
several years. There was only one
object of the conspiracy and that was
to cheat members of the public. The fact
that in the course of years others joined
the conspiracy or that several incidents
of cheating took place in
pursuance of the conspiracy did not
change the conspiracy and did not split up a
single conspiracy into several conspiracies.
It was suggested that although the modus
operandi may have been the same, the several
instances of cheating were not
part of the same transaction.
Reliance was placed on the cast of Sharpurji
Sorabji v. Emperor, AIR 1936 Bom 154 (A) and
on the cast of Choragudi Venkatadari, In re.
ILR 33 Mad 502 (B). These cases are not in
point.”
In the Bombay case, no charge of conspiracy
had been framed and the decision in the
Madras case was given before
Section 120B was introduced into the
Indian Penal Code. In the present case, the
instances of cheating were in pursuance of
the conspiracy and were therefore parts of
the same transaction.
38. In Kandimalla Subbaiah (supra), this
Court held where the alleged offence have
been committed in the course of the same
transaction, the limitation placed by
Section 234(1) cannot operate.
39. In Cheemalapati Ganeswara Rao (supra),
while considering the scope of Section 239
of the old Code (Section 220 in the new
Code), this Court held:
“28. The decision of the Allahabad High
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Court in T.B. Mukherji case directly in
point and is clearly to the effect that the
different clauses of Section 239 are
mutually exclusive in the sense that it is
not possible to combine the provisions of
two or more clauses in any one case and to
try jointly several persons partly by
applying the provisions of one
clause and partly by applying
those of another or other clauses.
A large number of decisions of
the different High Courts and one
of the Privy Council have been
considered in this case. No doubt, as has
been rightly pointed out in this case,
separate trial is the normal rule and joint
trial is an exception. But while this
principle is easy to appreciate and follow
where one person alone is the
accused and the interaction or
intervention of the acts of more persons
than one does not come in, it would where
the same act is committed by several
persons, be not only inconvenient but
injudicious to try all the several parsons
separately. This would lead to unnecessary
multiplicity of trials involving avoidable
inconvenience to the witnesses and avoidable
expenditure of public time and
money. No corresponding advantage can be
gained by the accused persons by following
the procedure of separte trials. Where,
however, several offences are alleged to
have been committed by several accused
persons it may be more reasonable to follow
the normal rule of separate trials. But
here, again, if those offences are
alleged not to be wholly unconnected
but as forming part of the same transaction
the only consideration that will
justify separate trials would be
the embarrassment or difficulty caused
to the accused persons in defending
themselves. We entirely agree with the High
Court that joint trial should be founded on
some principle.”
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42. In the case of Babubhai (supra), the
very same Bench considered the
permissibility of more than one
FIR and the test of sameness.
After explaining FIR under Section
154 of the Code, commencement of
the investigation, formation of opinion
under Sections 169 or 170 of the Code,
police report under Section 173 of the Code
and statements under Section 162 of the
Code, this Court, has held that the Court
has to examine the facts and
circumstances giving rise to both
the FIRs and the test of sameness
is to applied to find out whether both the
FIRs relate to the same incident in respect
of the same occurrence or are in regard to
the incidents having two or more parts of
the same transaction. This Court further
held that if the answer is in affirmative,
the second FIR is liable to be quashed. It
was further held that in case the contrary
is proved, where the version in the second
FIR is different and is in
respect of the two different
incidents/crimes, the second FIR is
permissible. This Court further
explained that in case in respect of the
same incident the accused in the first FIR
comes forward with a different
version or counterclaim, investigation
on both the FIRs has to be conducted. It is
clear from the decision that if two FIRs
pertain to two different incidents/crimes,
second FIR is permissible. In the light of
the factual position in the case on hand,
the ratio in that decision is not helpful to
the case of the CBI.”
10 I may also quote with profit a decision
of the Supreme Court in the case of Surender
Kaushik and others vs. State of U.P. and
others, reported in 2013 Cri.L.J. 1570,
wherein in paras 13 to 25, the Supreme Court
held as under :
“13. For apposite appreciation of the issue
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raised, it is necessitous to refer to
certain authorities which would throw
significant light under what
circumstances entertainment of second
FIR is prohibited. In Ram Lal
Narang (supra), this Court was dealing with
the facts and circumstances of a case where
two FIRs were lodged and two charge sheets
were filed. The Bench took note of the fact
that the conspiracy which was the subject
matter of the second case could
not be said to be identical with
the conspiracy which was the subject matter
of the first one and further the
conspirators were different, although the
conspiracy which was the subject matter of
the first case may, perhaps, be said to have
turned out to be a part of the conspiracy
which was the subject matter of the second
case. After adverting to the various facets,
it has been opined that occasions may arise
when a second investigation started
independently of the first may disclose
wide range of offences including
those covered by the first
investigation. Being of this view, the Court
did not find any flaw in the investigation
on the basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed
on behalf of the accused that the
registration of fresh information in respect
of the very same incident as an FIR under
Section 154 of the Code was not valid and,
therefore, all steps taken pursuant thereto
including investigation were illegal and
liable to be quashed. The Bench,
analyzing the scheme of the
provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 of the Code, came to
hold that 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 and, therefore, there
can be no second FIR and
consequently, there can be noPage 16 of 32
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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. It was further
observed that 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 of the Code.
15. It is worth noting that in the said
case, the two Judge Bench explained and
distinguished the dictum in Ram Lal Narang
(supra) by opining that the Court had
indicated that the real question was
whether the two conspiracies were in
truth and substance the same and
held that the conspiracies in the two
cases were not identical. It further
proceeded to state that the Court did not
repel the contention of the appellant
regarding the illegality of the second FIR
and the investigation based thereon being
vitiated, but on facts found that the two
FIRs in truth and substance were different
since the first was a smaller conspiracy and
the second was a larger conspiracy as
it turned out eventually. Thereafter,
the Bench explained thus:
The 1973 CrPC specifically provides for
further investigation after forwarding of
report under subsection (2) of Section 173
CrPC and forwarding of further
report or reports to the
Magistrate concerned under Section
173(8) CrPC. It follows that if
the gravamen of the charges in the two FIRs
the first and the second is in truth andPage 17 of 32
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substance the same, registering the second
FIR and making fresh investigation and
forwarding report under Section 173 CrPC
will be irregular and the court cannot take
cognizance of the same.
16. In Upkar Singh (supra), a three Judge
Bench was addressing the issue pertaining to
the correctness of law laid down in the case
of T.T. Antony (supra). The larger Bench
took note of the fact that a complaint was
lodged by the first respondent
therein with Sikhera Police Station
in Village Fahimpur Kalan at 10.00 a.m. on
20th May, 1995 making certain allegations
against the appellant therein and some other
persons. On the basis of the said
complaint, the police had registered
a crime under Sections 452 and 307 of
the IPC. The appellant had lodged a
complaint in regard to the very same
incident against the respondents
therein for having committed offences
punishable under Sections 506 and 307 of the
IPC as against him and his family members.
As the said complaint was not entertained by
the concerned police, he, under compelling
circumstances, filed a petition under
Section 156(3) of the Code before
the Judicial Magistrate, who having found
a prima facie case, directed the concerned
police station to register a crime against
the accused persons in the said complaint
and to investigate the same and submit a
report. On the basis of the said direction,
Crime No. 48A of 1995 was registered for
offences punishable under Sections 147, 148,
149 and 307 of the IPC. Challenging the
direction of the Magistrate, a revision was
preferred before the learned Sessions Judge
who set aside the said direction. Being
aggrieved by the order passed by the
learned Sessions Judge, a Criminal
Miscellaneous petition was filed before the
High Court of Judicature at Allahabad and
the High Court, following its earlier
decision in Ram Mohan Garg v. State of U.P.
[10], dismissed the revision. While
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dealing with the issue, this Court
referred to paragraph 18 of T.T. Antony
(supra) and noted how the same had been
understood:
11. This observation of the Supreme Court in
the said case of T.T. Antony is understood
by the learned counsel for the respondents
as the Code prohibiting the filing of a
second complaint arising from the same
incident. It is on that basis and
relying on the said judgment in T.T.
Antony case an argument is addressed before
us that once an FIR is registered on the
complaint of one party a second FIR in the
nature of a counter case is not registrable
and no investigation based on the
said second complaint could be carried
out.
17. After so observing, the Court held that
the judgment in T.T. Antony (supra) really
does not lay down such a proposition of law
as has been understood by the learned
counsel for the respondent therein. The
Bench referred to the factual score of T.T.
Antony (supra) and explained thus:
Having carefully gone through the
above judgment, we do not think that
this Court in the said cases of T.T. Antony
v. State of Kerala has precluded an
aggrieved person from filing a counter case
as in the present case. To arrive at such a
conclusion, the Bench referred to paragraph
27 of the decision in T.T. Antony (supra)
wherein it has been stated that 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 forPage 19 of 32
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exercise of power under Section 482 of the
Code or under Articles 226/227
of the Constitution.
Thereafter, the three Judge Bench ruled
thus:
In our opinion, this Court in that case only
held that any further
complaint by the same complainant or others
against the same accused, subsequent to
the registration of a case, is
prohibited under the Code because an
investigation in this regard would have
already started and further complaint
against the same accused will amount to an
improvement on the facts mentioned in the
original complaint, hence will be prohibited
under Section 162 of the Code. This
prohibition noticed by this Court, in our
opinion, does not apply to counter complaint
by the accused in the first complaint or on
his behalf alleging a different version of
the said incident.
18. Be it noted, in the said verdict,
reference was made to Kari Choudhary v. Sita
Devi[11], wherein it has been opined that
there cannot be two FIRs against the same
accused in respect of the same case, but
when there are rival versions in respect of
the same episode, they would normally take
the shape of two different FIRs and
investigation can be carried out under both
of them by the same investigating agency.
Reference was made to the pronouncement in
State of Bihar v. J.A.C. Saldanha[12]
wherein it has been highlighted that the
power of the Magistrate under Section 156(3)
of the Code to direct further investigation
is clearly an independent power and does not
stand in conflict with the power of the
State Government as spelt out under Section
3 of the Police Act.
19. It is worth noting that the Court also
dealt with the view expressed in Ram Lal
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Narang (supra) and stated thus:
22. A perusal of the judgment of this Court
in Ram Lal Narang v. State (Delhi Admn.)
also shows that even in cases where a prior
complaint is already registered, a counter
complaint is permissible but it goes
further and holds that even in cases
where a first complaint is registered and
investigation initiated, it is possible to
file a further complaint by the same
complainant based on the material gathered
during the course of investigation. Of
course, this larger proposition of law laid
down in Ram Lal Narang case is not necessary
to be relied on by us in the present case.
Suffice it to say that the discussion in Ram
Lal Narang case is in the same line as found
in the judgments in Kari Choudhary and State
of Bihar v. J.A.C. Saldanha. However, it
must be noticed that in T.T. Antony case,
Ram Lal Narang case was noticed but the
Court did not
express any opinion either way.
20. Explaining further, the Court observed
that if the law laid down by this Court in
T.T. Antony (supra) is to be accepted to
have held that a second complaint in
regard to the same incident filed
as a counter complaint is prohibited
under the Code, such conclusion would lead
to serious consequences inasmuch as
the real accused can take the
first opportunity to lodge a false
complaint and get it registered by
the jurisdictional police and then that
would preclude the victim to lodge a
complaint.
21. In Pandurang Chandrakant Mhatre (supra),
the Court referred to T.T. Antony (supra),
Ramesh Baburao Devaskar v. State of
Maharashtra [13] and Vikram v. State of
Maharashtra[14] and opined that the
earliest information in regard to the
commission of a cognizable offence is to be
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treated as the first information report and
it sets the criminal law in motion and the
investigation commences on that basis.
Although the first information report is not
expected to be an encyclopedia of events,
yet an information to the police in order to
be first information report under Section
154(1) of the Code, must contain some
essential and relevant details of the
incident. A cryptic information about the
commission of a cognizable offence
irrespective of the nature and
details of such information may not
be treated as first information
report. After so stating, the Bench
posed the question whether the information
regarding the incident therein entered into
general diary given by PW5 is the first
information report within the meaning of
Section 154 of the Code and, if so, it would
be hit by Section 162 of the Code. It is
worth noting that analyzing the facts, the
Court opined that information given to the
police to rush to the place of the incident
to control the situation need not
necessarily amount to an FIR.
22. In Babubhai (supra), this Court, after
surveying the earlier decisions, expressed
the view that the court has to
examine the facts and circumstances
giving rise to both the FIRs and the test of
sameness is to be applied to find out
whether both the FIRs relate to the same
incident in respect of the same occurrence
or are in regard to the incidents which are
two or more parts of the same
transaction. If the answer is in the
affirmative, the second FIR is liable to be
quashed. However, in case the contrary is
proved, where the version in the second FIR
is different and they are in respect of two
different incidents/crimes, the second FIR
is permissible. In case the accused in the
first FIR comes forward with a different
version or counterclaim in respect
of the same incident, investigation on
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both the FIRs has to be conducted.
23. It is worth noting that in the said
case, the Court expressed the view that the
High Court had correctly reached the
conclusion that the second FIR was liable to
be quashed as in both the FIRs, the
allegations related to the same incident
that had occurred at the same place in close
proximity of time and, therefore, they were
two parts of the same transaction.
24. From the aforesaid decisions, it is
quite luminous that the lodgment of two FIRs
is not permissible in respect of one and the
same incident. The concept of sameness
has been given a restricted meaning.
It does not encompass filing of a
counter FIR relating to the same
or connected cognizable offence. What is
prohibited is any further complaint by the
same complainant and others against the same
accused subsequent to the registration of
the case under the Code, for an
investigation in that regard would have
already commenced and allowing
registration of further complaint would
amount to an improvement of the facts
mentioned in the original complaint. As is
further made clear by the three Judge Bench
in Upkar Singh (supra), the prohibition does
not cover the allegations made by the
accused in the first FIR alleging a
different version of the same incident.
Thus, rival versions in respect of
the same incident do take different
shapes and in that event, lodgment of two
FIRs is permissible.
25. In the case at hand, the appellants
lodged the FIR No. 274 of 2012 against four
accused persons alleging that they had
prepared fake and fraudulent documents. The
second FIR came to be registered on the
basis of the direction issued by the learned
Additional Chief Judicial Magistrate in
exercise of power under Section 156(3) of
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the Code at the instance of another person
alleging, inter alia, that he was neither
present in the meetings nor had he signed
any of the resolutions of the meetings and
the accused persons, five in number,
including the appellant No. 1 herein, had
fabricated documents and filed the same
before the competent authority. FIR No. 442
of 2012 (which gave rise to Crime No. 491 of
2012) was registered because of an order
passed by the learned Magistrate. Be it
noted, the complaint was filed by another
member of the Governing Body of the Society
and the allegation was that the accused
persons, twelve in number, had entered into
a conspiracy and prepared forged documents
relating to the meetings held on different
dates. There was allegation of fabrication
of the signatures of the members
and filing of forged documents before the
Registrar of Societies with the common
intention to grab the property/funds of the
Society. If the involvement of the number of
accused persons and the nature of
the allegations are scrutinized, it
becomes crystal clear that every
FIR has a different spectrum. The
allegations made are distinct and
separate. It may be regarded as
a counter complaint and cannot be stated
that an effort has been made to improve the
allegations that find place in the first
FIR. It is well-nigh impossible to say that
the principle of sameness gets attracted. We
are inclined to think so, for if the said
principle is made applicable to the case at
hand and the investigation is
scuttled by quashing the FIRs, the
complainants in the other two FIRs would
be deprived of justice. The appellants
have lodged the FIR making the allegations
against certain persons, but that does not
debar the other aggrieved persons to move
the court for direction of registration
of an FIR as there have been other accused
persons including the complainant in the
first FIR involved in the forgery and
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fabrication of documents and getting
benefits from the statutory authority.
In the ultimate eventuate, how the
trial would commence and be concluded is
up to the concerned court. The appellants or
any of the other complainants or the accused
persons may move the appropriate court
for a trial in one court. That
is another aspect altogether. But to say
that it is a second FIR relating to the same
cause of action and the same incident and
there is sameness of occurrence and an
attempt has been made to improvise the case
is not correct. Hence, we conclude and hold
that the submission that the FIR lodged by
the fourth respondent is a second FIR and
is, therefore, liable to be quashed, does
not merit acceptance.”
11 I may also quote with profit a decision
of the Supreme Court in the case of Anju
Chaudhary v. State of Uttar Pradesh and
another, reported in 2013(3) GLH 237,
wherein the Supreme Court held as under:
“23. Be that as it may, if the law laid down
by this Court in T.T. Antony case is to be
accepted as holding that a second complaint
in regard to the same incident filed as a
counter complaint is prohibited under the
Code then, in our opinion, such conclusion
would lead to serious consequences. This
will be clear from the hypothetical example
given hereinbelow i.e. if in regard to a
crime committed by the real accused he takes
the first opportunity to lodge a false
complaint and the same is registered by the
jurisdictional police then the aggrieved
victim of such crime will be precluded from
lodging a complaint giving his version
of the incident in question,
consequently he will be deprived of
his legitimated right to bring the real
accused to book. This cannot be the purport
of the Code.
24. We have already noticed that in T.T.
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Antony case this Court did not consider
the legal right of an aggrieved
person to file counterclaim, on the
contrary from the observations found in the
said judgment it clearly indicates
that filing a counter complaint is
permissible.
41.It is not possible to enunciate any
formula of universal application for the
purpose of determining whether two or more
acts constitute the same transaction.
Such things are to be gathered
from the circumstances of a given case
indicating proximity of time, unity or
proximity of place, continuity of action,
commonality of purpose or design. Where two
incidents are of different times with
involvement of different persons, there is
no commonality and the purpose thereof
different and they emerge from different
circumstances, it will not be possible for
the Court to take a view that they form part
of the same transaction and therefore, there
could be a common FIR or subsequent FIR
could not be permitted to be registered or
there could be common trial.
42. Similarly, for several offences to be
part of the same transaction, the test which
has to be applied is whether they are so
related to one another in point of purpose
or of cause and effect, or as principal and
subsidiary, so as to result in one
continuous action. Thus, where there is a
commonality of purpose or design, where
there is a continuity of action, then all
those persons involved can be accused of the
same or different offences committed in the
course of the same transaction.”
12 What amounts to the ‘same transaction’
has been very succinctly explained by Hegde,
J. (as His Lordship then was) in the case of
C.N. Krishna Murthy vs. Abdul Subhan,
reported in AIR 1965 Mysore 128. Of course,
the term ‘same transaction’ was interpreted
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keeping in mind Section 235 of the Code of
Criminal Procedure (old Code) corresponding
to Section 220 of the Code of Criminal
Procedure (new Code). His Lordship
observed thus :
“The word ‘transaction’ is not intended to
be interpreted in any artificial or
technical sense; commonsense and ordinary
use of language must decide whether on
the facts of a particular case,
one is concerned with one
transaction or several transactions.
In order that a series of acts
be regarded as the same transaction, they
must be connected together in some way as
for instance by proximity of time,
unity of place, unity or community
of purpose or design and continuity of
action. Proximity of time and unity of place
are not essential though they furnish good
evidence of what unites several acts. The
main test must really be continuity of
action by which is meant the following up of
some initial act through all its
consequences and incidents until the series
of acts or group of connected acts come to
an end either by attainment of the object or
by being put an end to or abandoned, If any
of these things happens and the whole
process is begun over again it is not the
same transaction but a new one in spite of
the fact that the same general purpose may
continue. The vinculum juris which
interlinks a series of acts so
intimately as to form the same
transaction is different in each case, It
may be proximity of time and place, or
continuity of action, or community of
purpose and design, or relation of cause and
effect, or that of principal and
subsidiary.”
13 Therefore, it is clear, to constitute
same transaction, the series of acts alleged
against the accused must be connected
together in some way as for instance
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by proximity of time, unity of
place, unity or community of purpose or
design and continuity of action and the main
test must really be continuity of action by
which is meant the following up of some
initial act through all its consequences and
incidents until the series of acts or group
of connected acts come to an end. It is,
therefore, necessary to find out whether the
offences alleged against the accused could
be stated to be one committed during the
same transaction.
14 The law recognizes a common
trial or a common FIR being
registered for one series of acts so
connected together as to form the same
transaction as contemplated under
Section 220 Cr.P.C. The expression
‘same transaction’, from its very nature, is
incapable of exact definition (Anju
Chaudhary (supra); Mohan Baitha vs. State of
Bihar, (2001)4 SCC 350). The distinction
between two F.I.Rs. relating to the same
incident, and two F.I.Rs. relating
to different incidents or occurrences
of the same incident, should be
carefully examined (Babubhai vs. State of
Gujarat, (2010)12 SCC 254). The merits of
each case must be considered to determine
whether a subsequently registered FIR is a
second FIR relating to the same incident or
offence or is based upon distinct and
different facts and whether its scope of
inquiry is entirely different or not. It
will not be appropriate for the Court to lay
down one straight jacket formula uniformly
applicable to all cases. This will always be
a mixed question of law and fact depending
on the merits of a given case (Anju
Chaudhary (supra)). The test, to
determine whether two F.I.Rs. can be
permitted to exist, is whether the
two incidents are identical or not
(Ram Lal Narang vs. State (Delhi
Administration), (1979)2 SCC 322).
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15 The concept of ‘sameness’ has been given
a restricted meaning. In order to examine
the impact of one or more F.I.Rs., the Court
has to rationalise the facts and
circumstances of each case and then apply
the test of ‘sameness’ to find out whether
both F.I.Rs. relate to the same incident and
to the same occurrence; and whether they are
in regard to incidents which are two or more
parts of the same transaction or relate
completely to two distinct occurrences. It
is only if the second F.I.R. relates to the
same cause of action, the same incident,
there is sameness of occurrence and an
attempt has been made to improvise the case,
would the second FIR be liable to be
quashed. In cases where every FIR has a
different spectrum, and the allegations
made are distinct and separate, it may be
regarded as a counter complaint, but it
cannot be stated that an effort has been
made to improve the allegations that find
place in the first FIR or that the principle
of ‘sameness’ is attracted. (Babubhai
(supra); Surendra Kaushik v. State of Uttar
Pradesh, 2013 Cri L.J. 1570).
16 The picture that emerges from the
materials on record is as under:
(1) The original accused Nimeshbhai, who
happens to be the elder son of
Prahladbhai and elder brother of
Harekrishna, is alleged to have created a
false and concocted power of attorney
purported to have been executed by
his father and younger brother jointly
in his favour.
(2) Prima facie, it appears that the power
of attorney is forged and concocted, because
both the father and the younger brother on
the date of the execution of the power of
attorney were not in India.
(3) The power of attorney alleged to be
forged and concocted is common so far as thePage 29 of 32
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transfer of lands running in the name of
Prahladbhai and his younger son Harekrishna
is concerned.
(4) Two sales deeds came to be executed by
Nimeshbhai in his
capacity as a power of attorney in favour of
the applicant herein on the very same day
and date on the strength of the selfsame
power of attorney.
(5) It appears that the allegations
levelled in the First Information
Report lodged in the year 2014 i.e. IC.R.
No.61 of 2014 by and large are the same.
(6) The only distinction sought to
be drawn by the first informant is
that the parcels of land are distinct,
because one parcel of land is running in
favour of the fatherinlaw, namely
Prahladbhai and the other parcel of land
running in favour of his younger brotherin-
law, namely Harekrishnabhai.
(7) According to the complainant, the F.I.R.
in question i.e. the present one is
with regard to the fraudulent
transfer of land running in the name of
his fatherinlaw. Whereas, the F.I.R. of 2014
is with respect to the fraudulent transfer
of land running in favour of his younger
brother-in-law.
19 I am of the view that the F.I.R. in
question could be termed as a ‘second
F.I.R’ and not maintainable in law.
There is definitely commonality in both
the F.I.Rs. and they emerged from the very
same set of circumstances. It is not
possible for me to hold that they do not
form part of the same transaction. Both the
F.I.Rs. relate to the same incident and to
the same occurrence.
20 In such circumstances, the First
Information Report being C.R. No.I36 of
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2015 registered before the Badoli Police
Station, District: Vadodara for the offence
punishable under Sections 406, 420, 463,
464, 467, 468, 469, 471 and 120B of the
Indian Penal Code deserves to be quashed and
is accordingly quashed.
21 The Investigating Officer shall complete
the investigation of the First Information
Report being IC.R. No.61 of 2014 registered
with the Bodeli Police Station, District:
Vadodara Rural in accordance with law at the
earliest and file an appropriate report in
that regard before the Court concerned.
22 It is needless to clarify that the
Investigating Officer shall cite both
Prahladbhai Ramanbhai Bhagat as well as his
younger son Harekrishna Prahladbhai Bhagat
as the witnesses if he decides to file
chargesheet against the accused persons.
23 I further clarify that I have otherwise
not gone into the question whether the
applicant is a bonafide purchaser of the
properties for value without notice or not.
It is for the trial Court to decide the same
on the basis of the evidence that may be led
by the parties in the trial.
24 Rule is made absolute. Direct service is
permitted.”
12. It is required to be noted that there is no doubt
in mind of this Court to the settled proposition
that the Court is required to exercise utmost
restraint while entertaining a petition for
restraining the investigation to be conducted by
the police. However, this Court is also of the
firm view that allowing the continuing of
investigation against a person, in case there is
an apprehension of the abuse of the process of
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NEUTRAL CITATION
R/CR.MA/8944/2018 JUDGMENT DATED: 27/01/2025
undefined
law, may have a very serious consequences upon
such person. The Court cannot allow a wrong to be
perpetuated. Thus, the Court has to maintain a
very delicate balance between the two. If the
right of the complainant is paramount, the right
of the person against whom the FIR has been
directed to be lodged and investigation to be
conducted is also important. The Court being
guardian of both the complainant and the proposed
accused has to walk on a tight rope. However in
view of the aforesaid observations made by the
Coordinate Bench of this Court considering the
decisions of the Hon’ble Supreme Court, I am of
the considered opinion that the case of the
applicant is squarely covered by the said
decision. Therefore, the present application
deserves to be allowed and the impugned FIR
deserves to be quashed and set aside.
13. In the result, this application succeeds and is
allowed. The impugned First Information Report
being C.R. No. II-3002 of 2018 registered with
Thangadh Police Station, Surendranagar is hereby
ordered to be quashed qua the applicant herein.
All consequential proceedings arising from the
same also stands terminated.
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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