Ashwini Kumar Bhardwaj vs State of Rajasthan

S.C. Mital, J.—This petition has been filed by the petitioner with the prayer to quash FIR No. 471/96 Police Station, Kotwali, Chittorgarh under Sections 3, 7 r/w 25 & 27 of the Arms Act, 1959.

The brief facts are that A.S.I. Ram Singh conducted search of the cars Tata Siyara of the petitioner and recovered illegal ammunition on 7-6-96. he lodged first information report and a case was registered against the petitioner FIR No. 411/ 96 u/s 3 r/w 25 of the Arms Act. During investigation the petitioner furnished an information u/s 27 Evidence Act for the recovery U.S. Carbine cal 30 M.I. from the house of Mohan Mistri and in pursuance of this information the above illegal arm was recovered in a bag from the house of Mohan Mistri at the instance of the petitioners. The bag was locked and the petitioner stated this to be his lock which was broken in the absence of the key by the petitioner. On the basis of this information and recovery of U.S. Carbine of which the petitioner did not possess licence, therefore, Ranvijya Singh sub-Inspector & S.H.O. P.S. Bhadesar lodged a report on 26-6-96 at P.S. Chittorgarh whereupon another criminal case FIR No. 471 /96 u/s 3, 7 r/w 25 & 27 Arms Act was registered against the petitioner. The petitioner was in judicial custody in case No. FIR 411/96. The Investigation Officer of FIR No. 471/96 presented an application in the Court of Additional Chief Judicial Magistrate, Chittorgarh to take the petitioner in Police Custody which was rejected by order D/- 29-6-96 on the ground that the recovery was made during investigation of FIR No. 411/96 and the police had sufficient opportunity for investigation. The petitioner has now challenged through this petition, registration of the case against him by FIR No. 471/96 Police Station, Chittorgarh when already FIR no. 41 1/96 was under investigation for the offence u/s 3 r/w 25 Arms Act.

The learned counsel for the petitioner has vehemently argued that the police has no power to register another FIR on the basis of alleged recovery in pursuance of an information u/s 27 Evidence Act in previous FIR No. 411/96. It is contended that registration of another FIR No. 471/96 is illegal and without jurisdiction. The alleged recovery is relevant and admissible only in the matter alleged in FIR No. 411/96. Separate FIR cannot be registered against the petitioner for such recovery. Therefore, the investigation being conducted in connection with FIR No. 471/96 deserves to be quashed. The recovery made in pursuance of an information is part of the investigation of FIR., No. 411/96 registered for same nature of offence under the Arms Act. It is contended separate FIR has been registered in order to increase number of cases and to humilate him to show that the petitioner is a dangerous criminal. It is therefore, argued that when the recovery in pursuance of the information can be investigated in FIR 411/96 itself and result can be submitted along with the matter in the aforesaid FIR then registration of separate FIR is abuse of process of law and improper exercise of its powers and the Court should intervene to prevent this excess exercise of jurisdiction and abuse of process of law. Reference was made to 1996 Cr L R Raj 245 (Harbanslal v. State of Rajasthan).

The learned Additional Advocate General argued that there is no bar on submission of FIR and registration of another case against the petitioner in the facts and circumstances of this case because the incident and the offence in each FIR is distinct and separate. The recovery of U.S. Carbine is not part of the same incident or transaction alleged in FIR No. 411/96 and therefore, the Investigation Officer has a right lodge a separate report. There is no material also on the record to hold that the report has been lodged out of malice. The learned Additional Advocate General illustrated his argument that if during the investigation of an FIR relating to offence of theft, articles pertaining to the incident of another theft are recovered in consequence of the information given by the accused then a separate FIR can be lodged on the basis of the recovery of the stolen goods of another theft. Similarly, if during the investigation of a case under theft the accused furnishes information about the recovery of contraband article and if such articles are recovered then also a separate FIR can be lodged because offences are separate and distinct and the incident is also different from the offence of the FIR under investigation. It is therefore, contended that separate FIR has been lodged in the instant case on the recovery of the U.S. Carbine in pursuance of the information given by the petitioner because that is a separate recovery from the articles mentioned in the FIR No. 411/96 under investigation.

I have given my thoughtful consideration to the rival contentions. At the very out set, I may state that there is no material on the record to draw a conclusion that the FIR no. 471/96 has been registered out of malice with intention to harass or humilate the petitioner. The aforesaid FIR has been registered on the basis of the recovery of the U.S. Carbine made in consequence of the information furnished by the petitioner during the investigation of FIR No. 411/96. It is true that the FIRs. deal with the same category of offence under the Arms Act but I am inclined to agree with the learned Additional Advocate General that the recovery of U.S. Carbine is a separate and distinct incident from the incident mentioned in FIR No. 411/96. There is no restriction or any bar to present fresh FIR and registering a separate case for the alleged recovery of arms during the investigation of an FIR in which also the ammunition has been recovered. When the commission of an another offence came to the notice of the Investigation Officer in consequence of the recovery of arms during the investigation of the FIR No. 411/ 96 then another FIR No. 471/96 has been lodged on the basis of the new facts of the alleged information and recovery at the instance of the petitioner. I am of the opinion that in the above circumstances, the registration and investigation of fresh FIR cannot be said to be in any manner abuse of the process of law even if it may be possible to investigate the matter under the first FIR unless it is shown barred by any express provisions in Cr. P.C. or any other law. The incident given in FIR No. 471/96, cannot be, in my view, considered as part of the same incident or transaction mentioned in FIR No. 411/96. The learned counsel for the petitioner submitted that Section 220 Cr. P.C. provides that if in one series of acts forming the same transaction, more offences than one are committed by a person then every such offence can be tried at one trial. It is contended that in both the FIRs, there is alleged to be a recovery of arms and ammunisations without licence. The recovery relating to FIR No. 471/96 is alleged to have been made during the investigation of FIR no. 411/96 then all the offences relating to the recovery are triable in the same case to be submitted from FIR no. 411/96. Therefore, registration of separate FIR is abuse of process of law and indicate that it has been registered to increase the number of cases against the petitioner. I have considered this argument but as already stated above the recovery of arms and ammunitions in FIR No. 411 /96 and the recovery of U.S. Carbine during the investigation of the aforesaid FIR is not part of the same transaction. Merely, because the recovery has been effected during the investigation of FIR No. 411/96 such recovery cannot be treated as part of the same transaction or incident given in the aforesaid FIR Section 219 Cr. P.C. provides that an accused of more offence then one of the same kind committed within the space of twelve months may be charged with and tried at one trial for any number note exceeding three. But this does not lead to this conclusion that a fresh FIR cannot be lodged for the same kind of offence for which an FIR has already been lodged when the offences are not part of the same transaction or incident. It chargesheet is submitted in both the FIRs. then the Court may hold one trial, if deemed proper for both the offences. Harbanslal v. State of Rajasthan (supra) is not applicable to the facts of the instant case because in that case second FIR was lodged on the same allegations again. But fresh FIR which has been lodged here is not based on the same allegations.

In view of the foregoing discussion, I am of the opinion that FIR No. 471/96 lodged by Ranvijya Singh S.I. S.H.O. Bhadesar for the recovery of the arms and ammunisations is legal and not barred under the law. I do not find any case of abuse of process of law in the registration of aforesaid FIR. The petition, therefore, fails and it is hereby dismissed.