Panchal Jayesh Jayantibhai vs State Of Gujarat
2023 Latest Caselaw 3052 Guj

   R/CR.MA/17320/2015                              ORDER DATED: 20/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 17320 of 2015

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                        PANCHAL JAYESH JAYANTIBHAI
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                  Date : 20/04/2023
                   ORAL ORDER

1. By this application, under Section 482 of the Code of

Criminal Procedure, 1973, the applicant - original accused -

Panchal Jayesh Jayantibhai seeks to invoke inherent powers

of this Court, praying for quashment of the FIR being I-105 of

2015 registered with Fatehganj Police Station, Vadodara for

the offences punishable under Sections 354, 342 and 506 of

the Indian Penal Code and Sections 3 and 7 of the Protection

of Children from Sexual Offences Act, 2012.

2. Facts and circumstances giving rise to file present

application are that the applicant - accused being a teacher

has been charged with the sexual harassment, assault or

criminal force to woman with intent to outrage her modesty

R/CR.MA/17320/2015 ORDER DATED: 20/04/2023

and wrongful confinement. Admittedly, prior to the

questioned FIR, respondent no.2-original complainant lodged

FIR being I-C.R.No.155 of 2015 registered with Karelibaug

Police Station for the offences punishable under Sections 354

and 506(2) of the Indian Penal Code.

3. In the aforesaid facts, the instant application has

been preferred by the accused inter alia stating that the

allegations levelled against him do not constitute any offence.

The questioned FIR is a second FIR filed in respect of same

incident and on the same facts, after about 20 days of

lodgement of first FIR. Thus, the legal point raised herein

that second FIR based on the same facts is not permissible

and therefore, it would be quashed and set aside.

4. This Court has learned counsel Mr.Darshit Kamdar

for Mr.Ashish Dagli for and on behalf of the applicant herein

and Mr.Pranav Trivedi, learned APP for the respondent -

State.

5. Mr.Darshit Kamdar, learned advocate, relying on the

case of T.T. Antony Vs. State of Kerala (2006 (1) SCC

1048) and Amitbhai Anilchandra Shah Vs. CBI (AIR 2013

R/CR.MA/17320/2015 ORDER DATED: 20/04/2023

SC 3794), to contend that second FIR based on the same

facts is not permissible in law. Reiterating the contents of the

first FIR, he would urge that the accusation of sexual

harassment and act of criminal force with an intent to

outrage the modesty of the complainant having been alleged

against the applicant and on the same facts within gap of 20

days, suppressing the facts of the first FIR allegedly

registered with Karelibaug Police Station, Vadodara, the

second FIR was being registered with Fatehganj Police

Station, Vadodara. The only district aspect is of adding of

Sections 3 and 7 of the POCSO Act.

6. In the aforesaid contentions, learned counsel

Mr.Kamdar would submit that the questioned FIR being a

second FIR is contrary to the provisions of the Code of

Criminal Procedure, 1973 and the same would an abuse of

process of law and Court and therefore, is liable to be

quashed and set aside.

7. On the other hand, learned APP Mr.Pranav Trivedi for

the respondent - State opposing the plea of the quashing of

the second FIR submitted that the offence disclosed in the

second FIR is independent, distinct and not in respect of

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same transaction and therefore, the application is

misconceived and liable to be dismissed.

8. Having heard learned advocates for the respective

parties and on perusal of the contents of the both the FIRs,

as referred above, this Court is of the opinion that the case is

squarely covered by the legal proposition laid down in the

T.T. Antony (supra). The law concerning multiple criminal

proceedings on the same cause of action has been analyzed

in a judgment of T.T. Antony (supra). The Apex Court has

laid down the law on the issue of second FIR in respect of an

offence or different offences committed in the course of same

transaction, is not permissible. The observations made by the

Apex Court in Paras-19, 20 and 27 of the T.T. Antony's case

are relevant which read as under:

"19. The scheme of Cr PC 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

R/CR.MA/17320/2015 ORDER DATED: 20/04/2023

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) of Section 173 CrPC.

20. From the above discussion it follows that under the scheme of the provisions of Sections 154,1 55, 156, 157, 162, 169, 170 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 sub-section (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

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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) CrPC. It would clearly be beyond the purview of Section 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."

9. In Babubhai Vs. State of Gujarat (2010 (12) SCC

254), after considering the aforesaid principles with respect

to the multiple FIRs, the Apex Court in its judgment more

particularly Para-21 observed as under:

"21. In such a case 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

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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 the two different incidents/crimes, the second FIR is permissible. 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."

10. In light of the legal proposition of law and considering

the peculiar facts and circumstances of present case, this

Court is of the opinion that the complainant lodged two

FIRs with different police stations inter alia alleging the facts

of assault and criminal force, wrongful confinement and

sexual assault with intent to outrage of her modesty. The

both the FIRs relate to the same incident in respect of the

same occurrence. Thus, the second FIR is filed in respect of

same incident and on the same facts alleged to have been

committed in same transaction.

11. For the aforementioned reasons, the second FIR

being I-C.R.No.105 of 2015 registered with Fatehganj Police

R/CR.MA/17320/2015 ORDER DATED: 20/04/2023

Station, Vadodara for the offences punishable under

Sections 354, 342 and 506 of the Indian Penal Code and

Sections 3 and 7 of the Protection of Children from Sexual

Offences Act, 2012 is contrary to the scheme of the Criminal

Procedure Code and it is accordingly liable to be quashed

and hereby quashed. It is made it clear that the discloser

facts in the second FIR is to be treated as statement of the

victim so far as the provisions of POCSO Act and other

offences are concerned which have not been disclosed in the

first FIR. I am told that pursuant to the first FIR, the I.O.

has filed the chargesheet and case is pending before the

Competent Court. In such circumstances, the I.O. is at

liberty for making further investigation and filing a further

report under Section 173(8) before the Competent Court

after following procedure as prescribed under the Code of

Criminal Procedure, 1973. The respondent - complainant is

also at liberty to apply before the Trial Court, where the trial

of the first FIR is pending for addition of sections of POCSO

and other sections of Indian Penal Code if need so arise. As

and when application is filed, the learned Trial Court shall

decide the same in accordance with law.

R/CR.MA/17320/2015 ORDER DATED: 20/04/2023

12. Resultently, application is allowed. FIR being I-105 of

2015 registered with Fatehganj Police Station, Vadodara

and other consequential proceedings arising therefrom are

quashed and set aside qua applicant herein. Direct Service

is permitted.

(ILESH J. VORA,J) Rakesh