Lalasaheb S/O Rajesaheb Shaikh ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 888 Bom

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                                                                Cri.A-6331-16.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

              CRIMINAL APPLICATION NO. 6331 OF 2016

1.     Lalasaheb S/o Rajesaheb Shaikh,
       Age: 42 years, Occu: Service,
       R/o : Nath Nagar, latur,
       District Latur.

2.     Tabbsumbi D/o Ismile Shaikh,
       Age: 30 years, occu: service,
       R/o: Nath Nagar, Latur,
       District Latur.                                  ...APPLICANTS

       versus

1.     The State of Maharashtra
       Through the Police Inspector,
       Shivaji Nagar Police Station, ,
       Latur, District Latur.

2.     Dr. Superintendent of Police,
       District Latur.

3.     Dr. Ganpat S/o Shankarrao More,
       Age: Major Occ: Education Officer,
       (Secondary) Zilla Parishad Latur,
       Dist. Latur.                              ...RESPONDENTS
                                     ....
Mr. P.M. Nagargoje, Advocate for applicants
Mr. S.G. Karlekar, APP for Respondents No. 1 and 2
Respondent No. 3 - Served
                                 ....
                                   CORAM : S.S. SHINDE AND
                                            K.K. SONAWANE, JJ.

RESERVED ON : 13th FEBRUARY, 2017.

PRONOUNCED ON : 21st MARCH, 2017.

ORAL JUDGMENT :- (Per : K.K. Sonawane, J.)

1. Rule. Rule made returnable forthwith. The matter is taken up for

final hearing with the consent of parties.

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2. The applicants, by availing the remedy under section 482 of the

Criminal Procedure Code (for short "Cr.P.C.") moved the present

application and prayed to quash and set aside the impugned first

information report( for short "FIR") bearing crime 361 of 2016

registered against the applicants at Shivajinagar Police Station for the

offence of criminal breach of trust punishable under section 409 read

with section 34 of the Indian Penal Code (for short "IPC"). The

applicants agitated the validity, legality and propriety of the registration

of impugned FIR, being second FIR in respect of the same offence and

incident forming part of the same transactions as contained in the first

FIR bearing Crime No. 9 of 2012 registered earlier pursuant to the

directions of the learned Magistrate under section 156(3) of the Cr.P.C.

at the behest of complainant Mr. Hamid Sarwar Sahab Shaikh.

3. The genesis of the application in brief is that, the first informant

Dr. Ganpat Shankarrao More, Education Officer (Secondary) Zilla

Parishad, Latur filed the FIR alleging that applicant No.1 Shaikh

Lalasaheb Rajasaheb, President of Bhartiya Janhitwadi Sevabhavi

Santha, Latur in connivance with applicant No. 2 Secretary of the

Institution and respective Headmasters of five minority Schools,

misappropriated and swindled the funds sanctioned under the

Government scheme for providing basic amenities to the minority

School run by the applicants' Institution. It has been alleged that the

applicants did not utilize the funds procured from the Government for

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basic amenities of the minority school nor they obtained utilization

certificate from the concerned Collector to show that funds were

properly spent for valid purpose as prescribed under the scheme.

Moreover, it has also been reported that there were no minority Schools

in existence and applicants played the mischief of misappropriation of

Government funds procured under the garb of minority schools and

committed criminal breach of trust. Pursuant to the report of first

informant Dr. Ganpat Shankarrao More, Police of Shivajinagar Police

Station, Latur registered the crime No. 361 of 2016 and set the criminal

law in motion. Being aggrieved by registration of subsequent FIR

bearing crime No. 361 of 2016 under section 409 read with section 34

of the IPC, the applicants rushed to this court and preferred the present

application to redress their grievance.

4. The applicants, ventilated the grievances that one Hamid Sarwar

Sahab Shaikh filed private complaint bearing RCC No. 113 of 2012,

before the learned Judicial Magistrate, First Class, Latur on the

accusation that the applicants and others committed the offences of

forgery and cheating punishable under sections 406, 409, 463, 464,

465, 415, 417, 420, 467, 468, 470 and 471 read with section 34 of the

IPC. The complainant Hamid Sarwar Sahab Shaikh also casted

aspersions against Education Officer and other Government Personnels

including applicants for misappropriation of Government funds and

cheating etc. The learned Magistrate appreciated the nature of

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allegations and on exercising the powers under section 156(3) of the

Cr.P.C. referred the matter to the Police of Shivajinagar Police Station

for investigation. Pursuant to directions of the learned Magistrate,

Police of Shivajinagar Police Station registered the crime No. 9 of 2012

and swung into action. Pending the investigation, applicants

approached to this court by filing criminal application No. 3913 of 2012

and put in controversy the propriety and legality of the criminal

proceedings initiated against the applicants following directions of the

learned Magistrate under section 156(3) of the Cr.P.C. However, during

the course of hearing of aforesaid criminal application, it was

communicated that the Investigating Officer preferred "C" summary

report into crime No. 9 of 2012 before the learned Magistrate. The I.O.

did not come across with the fact of misappropriation of Government

funds by fabricating forged and fake documents. After the report of "C"

Summary, the criminal proceedings of crime No. 9 of 2012 came to be

closed. It has been contended that issue of misappropriation of Rs.

10,00,000/- (Rupees Ten Lakhs) obtained by the applicants for their

five minority Schools was also discussed and deliberated in the

Legislative Council being Star question No. 57282 and it was asserted

by the Government Personnels that there was no misappropriation of

Government funds and no question arises for taking action against the

concerned persons. The applicants added that complainant Mr. Hamid

Sarwar Sahab Shaikh of the RCC No. 113 of 2012 was the Vice

President of the applicants' Institution and he attempted to embroil the

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applicants unncessarily in multiple proceedings filed before the Charity

Commissioner, Latur etc. The allegation of misappropriation of

Government funds allocated to the applicants' Institution has already

been investigated and set at rest by filing "C" summary report before

the concerned Magistrate. Therefore, no question arises for lodging

second FIR on the same allegation forming same transactions, which

were contained in the first FIR by the complainant Mr. Hamid Sarwar

Sahab Shaikh against the applicants. Hence, applicants rushed to this

court and prayed to quash and set aside the second FIR bearing crime

No. 361 of 2016 being contrary to the provisions of law.

5. The learned counsel for the applicants vehemently submitted that

the second FIR of first informant Shri Ganpat Shankarrao More,

Education Officer, on the same allegations forming part of the same

transaction are not permissible and it is violative of article 21 of the

Constitution of India. He contends that allegation of misappropriation of

the Government funds allocated under the Government Scheme for

minority Schools were already investigated, after registration of first

FIR bearing Crime No. 9 of 2012 and IO also filed "C" summary report

under section 173 of the Cr.P.C. before the concerned Magistrate.

Therefore, there was no need of fresh investigation once again on

receipt of subsequent information of same cognizable offences.

According to learned counsel, proposal of sanctioning funds to the

applicants' institution under the Government Scheme was duly

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considered and verified by the concerned authority of the Government

of Maharashtra in 2008-2009. The concerned Education Officer of Zilla

Parishad, Latur has carried out inspection and after due enquiry

proposal came to be sanctioned for release of grants in favour of

applicants' Institution. According to learned counsel, unfortunately,

Schools were later-on closed down in the year 2011 due to paucity of

students. The requisite information about closure of Schools was given

to the concerned authority of Zilla Parishad, Latur vide letter dated

30-07-2011.

6. The learned counsel explained that writ petition No. 10252 of 2012

filed by one Mr. Sayeed Ifakatali Dastagir, was one of the associates of

original complainant Mr. Hamid Sarwar Sahab Shaikh. They attempted

to mislead this court in earlier proceeding of Criminal Application No.

10252/2012 for filing present criminal proceedings by lodging second

FIR. The learned counsel explained that there was no such direction

from this court to file criminal proceedings against the applicants. But,

the Education Officer under the pretext of court proceedings of writ

petition bearing No. 10252 of 2012 filed the impugned second FIR

against the applicants for the same nature of allegations, which is not

permissible and sustainable under the provisions of law. It is an abuse

of process of law and caused prejudice and injustice to the applicants.

The learned counsel in support of his submissions relied upon the

judicial pronouncements in the cases of T.T. Antony Vs. State of Kerla

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and others1, Upkar Sing Vs. Ved Prakash and others 2, and Amitbhai

Anilchandra Shah Vs. Central Bureau of Investigation and another 3.

7. Per contra, learned APP for respondent No. 1 filed affidavit in

reply and vociferously opposed the contentions put forth on behalf of

applicants. He submits that first FIR bearing Crime No. 9 of 2012 was

in respect of allegation of forgery for procuring the Government funds

by the applicants. There were allegations that the applicants fabricated

the forged and fake documents and opened the bogus bank account for

misappropriation of funds allocated to the applicants' Institution. There

was complaint that the applicant No. 1 prepared the fake change report

with forged signatures of the members and incorporated the name of

his wife i.e applicant No. 2 as Secretary of the Institution. According

to learned APP, the present FIR bearing crime No. 361 of 2016 is in

respect of improper utilization of funds sanctioned by the Government

under the scheme. The funds were sanctioned for providing basic

amenities to the five minority schools of the applicants' Institution, but

it was noticed that alleged five minority Schools were not at all in

existence. The applicants and other office bearers of the Institution in

connivance with concerned Headmaster of the alleged Schools

fabricated forged documents and obtained the benefits under the

Government scheme for personal gain. The learned APP has shown

possibility of involvement of original complainant Mr. Hamid Sarwar

1 AIR 2001 Supreme Court 2637 2 AIR 2004 Supreme Court 4320 3 AIR 2013 Supreme Court 3794

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Sahab Shaikh, in this crime (being Vice Chairman of the Institution)

who had filed private complaint bearing RCC No. 113 of 2012 for

registration of first FIR bearing Crime No. 9 of 2012 against the

applicants and others. The scope of investigation of second FIR is

totally different and distinct from the first information. Therefore, there

would not be any impediment to lodge subsequent FIR against the

applicants. There was no utilization certificate obtained by the

applicants from the concerned District Collector. The Minority Schools

were seen not in existence. In view of the nature of allegations, it is

essential to conduct separate investigation into the crime. Therefore,

learned APP prayed not to nod in favour of applicants and dismiss the

application.

8. We have given anxious consideration to the arguments canvassed

on behalf of both sides. We have also delved into relevant documents

produced on record. The pivotal issue to be ponder over in this matter

is that since first FIR bearing crime No. 9 of 2012 registered on similar

and identical allegations as well as cause of action pertains to the

misappropriation of funds allocated to the applicants' Institution under

the Government Scheme meant for minority Schools, the subsequent

FIR could not have been lodged and entertained for the same

allegations of misappropriation of the Government funds and the same

is violative of principles of double jeopardy.

9. Obviously, it is the settled principle of law that very purpose of

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registration of FIR is to set criminal investigation in motion, which

would culminate in filing of police report under section 173 of the

Cr.P.C. The law does not permit more than one FIR in relation to the

same incident or different incident arising from same transaction.

10. The chapter XII of the Cr.P.C. deals with the information to the

Police and their powers to investigate. Section 154 of the Cr.P.C. deals

with in respect of cognizable cases whereas section 155 deals with

information as to non-cognizable cases and investigation of such cases.

The provision of section 154 of the Cr.P.C., contemplates that there has

to be a FIR about incident which constitute a cognizable offence and

every such information relating to commission of cognizable offence,

whether given orally or otherwise to the Officer In-charge of the Police

Station, has to be reduced into writing by or under his own direction

and be read over to the informant. The FIR recorded shall be signed by

the person giving such information and substance of the same is

required to be entered into a book to be kept by such officer in such

from as the State Government may prescribe. The provisions of Section

156(3) of the Cr.P.C. command the learned Magistrate for directions to

the Officer In-charge of the Police Station to conduct investigation and

report under section 173 of the Cr.P.C. The section 190 of the Cr.P.C.

describes powers of the Magistrate to take cognizance of the offence

under certain circumstances. It is crystal clear that the scheme of

sections 154, 156 and 190 of the Cr.P.C. does not recognize more than

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one FIR about the occurrence.

11. In the matter of T.T. Antony Vs. State of Kerala and others

relied upon by the learned counsel appearing for the applicants, it has

been held that registration of another FIR in respect of same incident

as FIR under section 154 of the Cr.P.C. was not valid and legal and

required to be quashed. The earliest or the first information in regard to

commission of cognizable offence only be treated as FIR under section

154 of Cr.P.C. Therefore, there cannot be second FIR and consequently

no fresh investigation on receipt of subsequent information of the same

cognizable offence.

12. In the matter of T.T. Antony vs. State of Kerala and others,

reported in (2001)6 SCC 181, the Honourable Apex Court, in

paragraph No. 27 has observed as under :-

"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 Cr.P.C. 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C., nay, a case of abuse of the statutory power of investigation in a

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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 Cr.P.C. or under Articles 226/227 of the Constitution."

13. In the case of Babubhai vs. State of Gujarat reported in (2006)

12 SCC 254, the Honourable Apex Court, had an occasion to consider

various judicial pronouncements on the question of registration of

subsequent FIR in connection with the same or connected offences, and

elucidated the same in para. Nos. 16 to 19, which read thus :-

"16. In Upkar Singh Vs. Ved Prakash 3, this Court considered the judgment in T.T. Antony 2 and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counterclaim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the 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 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counterclaim in respect of the same incident having a different version of events, is permissible.

3 (2004) 13 SCC 292 2 (2001) 6 SCC 181

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17. In Rameshchandra Nandlal Parikh Vs. State of Gujarat3, this Court reconsidered the earlier judgment including T.T. Antony2 and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.

18. In Nirmal Singh Kahlon Vs. State of Punjab 5, this Court considered a case where an FIR had already been lodged on 14.6.2002 in respect of the offences committed by individuals. Subsequently, the matter was handed over to the Central Bureau of Investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries. The second FIR was lodged by the CBI. This Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.

19. The Court held as under: (Nirmal Singh Kahlon case SCC pp.466-67, para 67)

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."

(Emphasis added).

3 (2006)1 SCC 732 2 (2001) 6 SCC 181 5 (2009) 1 SCC 441

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14. In Amitbhai Shah Vs. CBI, reported in (2013) Cri.L.J. 2313, it

has been reiterated that second FIR, if in the nature of cross complaint

or counter complaint is permissible, which is an exception carved out in

Upkar Singh's case (supra) to the effect that, when the second FIR

consists of alleged offences which are in the nature of cross-case/cross-

complaint or counter-complaint, such cross-complaint would be

permitted as a FIR.

15. In Criminal Appeal No. 305 of 2013 ( Surendra Kaushik and

others Vs. State of UP)4 while dealing with the circumstances of

registration of two FIRs on the similar and identical cause of action and

allegations, the Honourable Supreme Court, in para.25, made the

following observations :-

"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 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

4 (2013)5 SCC 148

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held on different dates. There was allegation and 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 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 the quashed, does not merit acceptance."

16. While dealing with the issue in the case of Anju Choudhary Vs.

State of U.P and another reported in 2012 DGLS (Soft) 688: 2013(6)

SCC 384, Their Lordships of the Hon'ble Supreme Court made reference

of observations in the case of Kari Choudhary Vs. Sita Devi 2002(1)

SCC 714 by giving hypothetical illustrations, and explained the very

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object and purport of the relevant provisions of the Cr.P.C, which would

read 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 herein below 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 legitimate right to bring the real accused to book. This cannot be the purport of the Code."

17. In the case of Anju Chaudhari vs. State of UP5, it has been held

by the Honourable Supreme Court that the examination of in-built

safeguards provided by the legislature in the very language of Section

154 of the Code is an significant aspect which can be deduced from the

principle akin to the double-jeopardy, rule of fair investigation and to

prevent the abuse of power by the Investigation Authority of the police.

Therefore, the second FIR for the same incident can not be registered.

5 (2013)6 SCC 384

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However, where the incident is separate, offences are similar or

different, or even where the subsequent crime is of such magnitude

that it does not fall within the ambit and scope of FIR recorded first, in

such circumstances, the second FIR could be registered. The Hon'ble

Supreme Court expressed the view that the court has to examine the

facts and circumstances giving rise to file FIRs and test of sameness is

to be applied to find out whether both the FIRs relates to the same

incident and same occurrence or in regard to incident which was two or

more part of the same transactions. In case the answer is affirmative,

the FIR is liable to be quashed. However, when the version is different

in second FIR and it relates to different incident or crimes, the second

FIR is permissible under law.

18. We would reiterate that there cannot be two FIRs registered in

relation to the same occurrence or incidents or different incident

forming part of the same transaction. Therefore, the act of registration

of second FIR of same occurrence/incident is contrary to law and very

spirit of section 154 of the Cr.P.C. However, when the incident is

separate, offences are similar or different or even where the

subsequent crime is of such magnitude that it would not fall within the

ambit and scope of the FIR recorded earlier, then the second FIR is

required to be registered for investigation. The ultimate object of

registration of FIR is to find out whether there was commission of

alleged cognizable offences and if so who are the culprits. No any

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aggrieved victim of the crime should be precluded from his legitimate

right to lodge FIR to book the real culprits of the crime.

19. It is settled principle of law that issue of sustainability of two

FIR has to be examined on merits of each case, whether a

subsequently registered FIR is a second FIR about the same incident or

offence or is based on distinct and different set of facts and whether its

scope of inquiry is totally different and not identical one. There would

not be any straight-jacket formula to be applied uniformly to all cases.

It will always be a mixed question of law and facts depending on the

merits of a given case (emphasis supplied on Anju Chudhary's case

2013(6) SCC 384).

20. In the instant case, on the backdrop of aforesaid legal guidelines

delinated by the Honourable Supreme Court, it is imperative to

examine factual aspects leading to registration of multiple FIRs against

the applicants. Intense scrutiny of the recitals of both the FIRs reflects

that these FIRs are not similar in nature. The allegations casted in

both the FIRs are totally based on different circumstances and having

distinct spectrum. The scope of investigation of both FIRs are not

identical and similar in nature. Therefore, it would be cumbersome to

construe that both FIRs are in respect of same offence. Admittedly,

first FIR bearing crime No. 9 of 2012 was registered on the basis of

exercise of powers by the learned Magistrate under section 156(3) of

the Cr.P.C at the behest of complainant Mr. Hamid Sarwar Sahab

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Shaikh. There were allegations that applicants including Government

Personnels of the Panchayat Samiti, Bank employees, Headmasters of

the minority Schools etc. prepared/fabricated forged and fake

documents to procure the Government grants meant under the scheme

for minority Schools. It was also alleged that the applicants and others

opened the bogus account in the bank, and encashed the cheques of

the Government funds. There were also allegations that the applicants

prepared fake documents under forged signatures of the members of

the Institution and submitted the spurious change report before the

Charity Commissioner to show newly elected Board of Trustees of the

Institution. Simultaneously, the complainant Mr. Hamid Sarwar Sahab

Shaikh has also casted aspersions against the applicants and others

about embezzlement of the funds procured under the Government

Scheme by committing mischief of forgery. In view of allegations

nurtured on behalf of complainant Mr. Hamid Sarwar Sahab Shaikh, the

learned Magistrate exercised the powers under section 156(3) of the

Cr.P.C. and referred the matter to the Police of Shivaji Nagar Police

Station for investigation as per the provisions of law, and consequently,

the crime No. 9 of 2012 came to be registered against the applicants

and Government Personnels of the Zilla Parishad, Panchayat Samiti,

Bank Officials as well as Headmasters of the minority schools etc. At

this juncture, it is worth to mention that, concerned IO after

registration of crime proceeded to collect evidence to bring home guilt

of the applicants and other co-accused, for the charges pitted against

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them. After examination of ramification of the crime of forgery as

alleged against the applicants and others, unfortunately, IO did not

prefer charge-sheet against applicants and he submitted report of "C"

summary under section 173 of the Cr.P.C. In the aftermath

proceeding came to be closed.

21. It is to be noted that when the IO is of the opinion that no

judicial proceedings needs to be initiated, the Maharashtra Police

Manual classifies the orders which may be requested by IO as

Summaries "A" "B" and "C". The request for "A" Summary is to be

made when the Police Officer investigate the case is of the view that

the offence is true but undetected and where there is no clue whatever

about the culprits or property or where the accused is known but there

is no evidence to justify for criminal trial. A request for "B" Summary is

sustainable when the complaint is maliciously false and there is no

substance for further proceedings or trial against so called accused. A

request for "C" summary is required to be made when the complaint is

neither true nor false, that is, due to mistake of facts or being of a civil

nature.

22. In the instant case, it is incumbent to appreciate that the

parties are ad-idem to the factual aspects that earlier proceedings of

Crime No. 9 of 2012 registered pursuant to the directions of the

learned Magistrate under sections 156(3) of the Cr.P.C. came to be

closed after final report of "C" Summary in nature under section 173 of

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the Cr.P.C. by the IO. Therefore, there would not be any further trial of

the applicants in the court of Law for the allegations nurtured in the

first FIR bearing crime No. 9 of 2012 registered in this matter.

23. Now, appreciating the circumstance which gives rise for

registration of subsequent FIR No. 361 of 2016 for the offence

punishable under section 409 read with section 34 of the IPC against

applicants and Office bearers of the institution etc, it transpired that

allegations made in the another FIR bearing crime No. 361 of 2016 are

totally rest on the different footing for the different nature of mischief

allegedly committed by the applicants. The complainant is the

Government Personnel, i.e. Education Officer of the Zilla Parishad,

Latur. A background for registration of another crime No. 361 of 2016

is also significant for consideration to set criminal law in motion. As

referred supra there was criminal writ petition No. 10252 of 2012 filed

before this Court by one Sayyed Hifakatali Dastgir for requisite enquiry

and directions to take action against errant individuals. Pending the

proceedings before this Court, the Government personnels of Education

Department of Zilla Parishad conducted the enquiry and it was revealed

that five minor Schools for which the applicants had obtained funds of

Rs. 10,00,000/- (Rupees Ten Lakhs) under the Government Scheme

were not in existence at all. The funds were not utilized for which it

came to be disbursed to applicants' Institution under the Government

Scheme. The applicants did not obtain requisite certificate from the

{21} Cri.A-6331-16.odt

concerned District Collector for proper utilization of funds as required

under the scheme. Therefore, it has been alleged that applicants and

other Office bearers of the Institution in connivance with Headmasters

of the so called Schools procured the Government funds for personal

gain and misappropriated the same.

24. The comparison of the allegations contained in both the FIRs

demonstrate that the earlier complaint was filed by one Mr. Hamid

Sarwar Sahab Shaikh, Vice President of the applicants' Institution. He

had filed complaint for the allegation of preparation of forged

document i.e. change report in respect of the newly elected Board of

Trustees. He had also made allegation that the applicants opened the

bogus bank accounts and misappropriated the funds. The earlier

complaint bearing Crime No. 9 of 2012 appears to be personal agenda

of the complainant Mr. Hamid Sarwar Sahab Shaikh, who was one of

the Office bearers of the applicants' Institution. Moreover, he had

initiated multiple proceedings against the applicants and others before

the learned Charity Commissioner in regard to the dispute pertains to

the nomination of the trustees on the Board of applicants' Institution.

It seems that the complainant Mr. Hamid Sarwar Sahab Shaikh

attempted to use the court seeking private vendetta or with an ulterior

motive. However, the second FIR is pertains to misuse of Government

Funds by committing mischief of criminal breach of trust. The

complainant is the Government Personnel i.e. Education Officer of the

{22} Cri.A-6331-16.odt

Zilla Parishad, Latur. He was also arraigned as one of the accused in

the earlier proceeding of Crime No. 9 of 2012 filed by the complainant

Mr. Hamid Sarwar Sahab Shaikh.

25. According to learned APP, subsequent FIR bearing crime No.

361 of 2016 pertains to the misappropriation of Government funds

obtained under the garb of five minority schools, which were found not

in existence at all and possibility of involvement of Office bearers of the

applicants' Institution including the earlier complainant Mr. Hamid

Sarwar Sahab being Vice Chairman of the applicants' Institution, could

not be ruled out. If involvement of number of accused persons and the

nature of allegations nurtured on behalf of first informant Mr. Ganpat

More, who is employee of the Zilla Parishad, Latur are scrutinized, no

expert is required to arrive at the conclusion that the subsequent FIR

has a different spectrum. The allegation of misappropriation made in

both the FIRs are based on different footings and distinct

circumstances. The subsequent FIR may be regarded as counter-

complaint against Mr. Hamid Sarvar Sahab Shaikh complainant in first

FIR. It would fallacious to blame the subsequent FIR as an endevour to

improve the allegations that find place in the first FIR. It would be

reiterated that proceeding of earlier FIR has already been closed

following "C" summary report preferred by the IO under section 173 of

the Cr.P.C. Therefore, we are not inclined to appreciate that there

would be a violation of principle of double-jeopardy.

{23} Cri.A-6331-16.odt

26. In contrast, in view of rule of fair investigation, it would be

essential to give reasonable opportunity to aggrieved victim of such

crime for fair investigation to collect the evidence and to find out

whether any cognizable offence as alleged has been committed and if

yes, then who are the perpetrator of the crime. In case, the

subsequent FIR is not allowed to be investigated it would cause

injustice and prejudice to the aggrieved victim of the crime and the

State machinery would be precluded from its legitimate rights to lodge

the FIR to bring home the guilt of real culprits. In the case of Nirmal

Singh Kahlon Vs. State of Punjab and ors. 1 Their Lordship's of Supreme

Court discussed the concept of fair trial and fair investigation and in

para 27 observed as under:

An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation."

27. The second FIR, in our opinion, would be maintainable for the

reason that, earlier proceeding of FIR crime No. 9 of 2012 has been

closed following "C" summary report by concerned IO under section

173 of the Cr.P.C. Thereafter, new discovery came to be unearthed on

the factual foundation during enquiry initiated by the authority of Zilla

Parishad. It was revealed that five minority schools for which Office

1 AIR 2009 SC 984

{24} Cri.A-6331-16.odt

bearers of the applicants' Institution procured the Government funds

under the scheme were not at all in existence. The applicants and

others under the garb of minority Schools misappropriated the

Government funds. Therefore, in view of new discovery of the facts,

fair investigation is required to be carried out otherwise, it would pave

escape route for the miscreants. The discovery of new facts would

enhance the scope of investigation. It is worth to mention that the

earlier complainant Mr. Hamid Sarwar lodged the FIR making

allegations against the applicants and Government personnel of Zilla

Parishad etc. But, it does not debar the aggrieved first informant to

move for registration of another FIR against the applicants as well as

other office bearers of the institution including the complainant of the

first FIR. If the principle of sameness is applied in this matter and

investigation is scuttled by quashing FIR, it would cause miscarriage of

justice and aggrieved complainant would be deprived of justice.

(emphasis supplied on the exposition in Surendra Kaushik's case

(2013) 5 SCC 148 referred supra). Hence, in order to facilitate fair

investigation it would be justifiable to allow the prosecution to proceed

further separately on the basis of second FIR to find out truth and

veracity in the allegations made on behalf of Government personnels

of the Zilla Parishad, Latur so that the aggrieved complaint would not

be deprived of justice. Moreover, there would not be any question of

joint/common trial or separate trial as the earlier proceeding in respect

of Crime No. 9 of 2012 has already been closed following "C" Summary

{25} Cri.A-6331-16.odt

report by the I.O. The question of violation of Article 20 of the

Constitution of India would not arise for the contravention of principle

of double jeopardy. The investigation agency should have the freedom

to go into the whole gamut of the allegations to reach the conclusion

on its own.

28. In view of the circumstances discussed above, we are not

inclined to quash and set aside subsequent FIR giving rise to Crime No.

361 of 2016 for the charges of criminal breach of trust against the

applicants and others as envisaged under section 409 read with

section 34 of the IPC. We are of the considered opinion that submission

on behalf of the applicants that subsequent FIR bearing Crime No. 361

of 2016 registered with Shivajinagar Police Station, Latur, District Latur

is an abuse of process of law and being second FIR of the same

allegations liable to be quashed and set aside, is not sustainable and

acceptable. In sequel, the application deserves to be rejected.

Accordingly, the application is rejected. Rule stands discharged.

                Sd/-                                                Sd/-

       [K.K.SONAWANE]                                           [S.S. SHINDE]
            JUDGE                                                   JUDGE

29. After pronouncement of the judgment, the prayer is made by the

learned counsel appearing for the applicants to continue the ad-interim

relief, which was in force during the pendency of the application. The

{26} Cri.A-6331-16.odt

prayer is seriously opposed by the learned A.P.P. appearing for the

respondent - State.

30. Since, we have rejected the application, there is no question of

continuing an ad-interim relief any further. Hence, the prayer to

continue ad-interim relief, which was in force during pendency of this

application stands rejected.

                Sd/-                                      Sd/-

       [K.K.SONAWANE]                         [S.S. SHINDE]
            JUDGE                                  JUDGE




MTK