Brajraj Singh @APPELLANT@Hash State Of Rajasthan And Ors

1. Present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.38/2018, dated 22.01.2018 registered at Police Station

Kekri, Ajmer for offences under Sections 420, 467, 468, 120B and 406 IPC. Present FIR has been lodged by Gopal S/o Balal. FIR lodged by him is

annexed with the present petition as Annexure-4.

2. Complainant-respondent No.2 Gopal in the impugned FIR stated that the complainant on 14.03.2012 had purchased Plot Nos.33 and 34 through

registered sale deed from Brijraj Singh S/o Raghuveer Singh, Smt. Praveen Kanwar W/o Brijraj Singh and Jaivardhan Singh S/o Brijraj Singh. The

complainant stated that

above-said accused in order to cheat the complainant executed a forged document regarding sale of the land.

3. This Court on 11.04.2018 had passed the following order:-

“The learned counsel for the petitioner contends that earlier at the instance of complainant, FIR No.612/2015 was registered at Police Station

Kekri, District Ajmer for the offences under Sections 420, 406 and 120B IPC and in the said FIR, Final Report in negative form was submitted opining

that the dispute if any is civil in nature. The learned counsel for the petitioner contends that subsequently on self-same allegations, impugned FIR No.

38/2018 dated 22.1.2018 was registered at the same police station for the offences under Sections 420, 468, 120B and 406 IPC.

Issue notice to the respondents for 2.5.2018.

Process Dasti also.

List this case 2.5.2018.â€​

4. Today Mr. Nahar Singh, S.I./Investigating Officer is present in Court. He has not denied that on the same allegations in earlier FIR lodged by

different complainant final report in negative form has been submitted by giving an opinion that dispute is civil in nature.

5. Counsel for the petitioner has submitted that for the same offence pertaining to similar transaction the investigating agency cannot give two

different opinions.

6. Be that as it may, it is not denied by the Counsel for the petitioner, Investigating Officer and Counsel for the complainant that final report

submitted in negative form in FIR lodged by another complainant has been accepted by the trial Court.

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:

“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:

19. 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 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)Â of Section 173 Code of

Criminal Procedure.(emphasis supplied)

20. 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.

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 Sub-section (8) of Section 173Â 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

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.

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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54. 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 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.

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

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)

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-in-charge 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 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.

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.â€

(emphasis supplied)

8. 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.

9. 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?

10. Upon filing of the report of investigation along with opinion of the Investigating Officer, the complainant shall be entitled to file a protest petition

and the protest petition, so filed, shall be decided by the Court of concerned Magistrate by passing a detailed speaking order.

11. Liberty is granted to the Counsel for the complainant to distinguish or assail acceptance of earlier final report in negative form.

12. In view of the observations made and directions issued above, present petition is disposed of.