Gujarat High Court
Sobharajsinh Madhavsinh Sindha vs State Of Gujarat on 5 February, 2025
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Reserved On : 10/01/2025
Pronounced On : 05/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20902 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 19771 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 333 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 360 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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SOBHARAJSINH MADHAVSINH SINDHA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PC KAVINA, SENIOR ADVOCATE WITH MR MAULIK NANAVATI
MR ASHISH DAGLI, Advocate for the Applicant(s) No. 1
MS TRUSHA PATEL, SENIOR ADVOCATE WITH MR BHAVESH
MR HIMANSHU K PATEL ADDITIONAL PUBLIC PROSECUTOR for the
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV COMMON JUDGMENT
[1] Since all the matters having almost similar facts and
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common questions of law, therefore, at the request of learned
advocates appearing for the respective parties, are taken up for
final hearing together. Hence, Rule returnable forthwith. Learned
advocate Mr. Bhavesh Babariya waives service of notice of Rule for
the private respondent and learned A.P.P. Mr. Himanshu K. Patel
waives service of notice of Rule for the respondent - State of
Gujarat.
[2] For the sake of convenience, R/ Criminal Miscellaneous
Application No.19771 of 2021 is treated as the lead matter.
[3] By way of this application under Section 482 of the
Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the
applicants - original accused persons have approached this Court
for quashing and setting aside First Information Report being C.R.
No.11197005211511 of 2011 registered with the Vadodara Taluka
Police Station District : Vadodara Rural on 14 th October 2021 for
the offence punishable under Sections 3, 4(1), 4(2), 4(3) of the
Gujarat Land Grabbing (Prohibition) Act, 2020 (for short, "the
Land Grabbing Act") and Section 506(2) of the Indian Penal Code.
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[4] For the sake of convenience, free translation of the
impugned F.I.R. is reproduced hereinbelow:
"The accused persons had, in collusion with one
another, despite having knowledge that the land bearing
block No.295, old survey No.328, admeasuring about 8195
Sq.M., situated in the outskirts of Sevasi village is owned by
Akota Branch of Andhra Bank, currently Union Bank of India
since 2006, and with an intention to grab the said land,
executed a forged agreement of Rameshbhai Dahyabhai Patel
for handing over the possession of the land mortgaged with
the bank in favour of Sanjaysinh Janaksinh Mahida and a
forged power of attorney in favour of Shobhrajsinh
Madhavsinh Sindha and that on the basis of the said power
of attorney, Shobhrajsinh Sindha filed a case under the
Tenancy Act before the Agricultural Tribunal and that
Sanjaysinh Mahida had erected a board displaying that he
holds the title and share in the said land and constructed a
pucca room and kept Vikrambhai Devabhai Bharvad and
other ten to twelve Bharvads present to occupy the said land
and Vikrambhai Bharvad and other Bharvads accompanying
him threatened Girishbhai Jayantibhai Patel to kill him and
occupied and grabbed the said land and thereby, they had
committed an offence.
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My name is Kuldeepisinh Ramanlal Vaghela, age
- 40 years, occupation - service, R/o C/22, Jay Chamunda
Society, opp. Jhavernagar, Vaghodiya Road, Vadodara City,
Mob. No.9998005480.
Appearing in person, I declare and dictate the
facts of my complaint that, I reside at the above mentioned
address with my family and work as a Credit Manager in
Akota Branch of Andhra Bank, currently Union Bank of India
since 11/10/2021.
As the land bearing block No.295, old survey
No.328, admeasuring about 8195 Sq.M. situated in the
outskirts of Sevasi village is owned by our bank and it has
been illegally occupied, the previous Manager Shri
Bhanuprasad Singh, had submitted an application to the
Office of the Collector, Vadodara on behalf of the bank to
take action in this regard under the Land Grabbing Act. In
connection with the said application, the Collector passed an
order vide Letter No. L.G. / S.R.No.406-21 / WS / 2130 /
2021 dated 13/10/2021 to register an FIR, but as Shri
Bhanupratap Singh, the Manager who had submitted the
application got transferred and as I have been authorized by
our bank to register an FIR, I have appeared here and I
declare the facts of my complaint.
The land bearing block No.295, old survey
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No.328, admeasuring about 8195 Sq.M. situated in the
outskirts of Sevasi village was originally owned by
Rameshbhai Dahyabhai Patel and in 2002, he sold out the
said land to Pragnesh Balkrushna Shah R/o G-2, Kanha
Complex, Purushottamnagar, BPC Road, Vadodara, Director
of M/s Apollo Chemtech Ltd. by executing a sale-deed and
that in 2002, the said land was under possession of Pragnesh
Balkrushna Shah. In 2002, Pragnesh Balkrushna Shah
applied to avail a cash credit loan of Rs.65,00,000/- from our
Andhra Bank, currently Union Bank of India and he had
informed the bank in writing to mortgage the land bearing
block No.295, old survey No.328, admeasuring about 8195
Sq.M. situated in the outskirts of Sevasi village against the
said loan. Therefore, the officers of Andhra Bank at the
relevant times verified the documents submitted with the
application and sanctioned the loan and the limit of the said
loan was Rs.50,00,000/-. Total amount of Rs.65,00,000/-
including the said Rs.50,00,000/- and bank guarantee of
Rs.15,00,000/- was given as a loan to M/s Apollo Chemtech
Ltd. by the bank. Thereafter, Pragnesh Balkrushna Shah,
Director of M/s Apollo Chmetech Ltd. did not repay the
interest or principal amount of the said loan and total
amount of Rs.75,78,779/- including the interest and principal
amount of the said loan was due to the bank and therefore,
the bank filed a recovery case in the D.R.T., Ahmedabad and
prayed to attach the land (property) mortgaged to recover
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the amount of the loan. The amount of loan was not repaid
by M/s Apollo Chemtech Ltd. even during the pendency of
the said case. Therefore on 22/03/2005, D.R.T., Ahmedabad
issued injunction against sale of the land mortgaged and on
21/09/2006, after the case was adjudicated, the value of the
land mortgaged against the loan was determined to be
Rs.83,77,000/- and it was ordered to auction the said land by
handing over its possession to Andhra Bank and therefore,
Andha Bank, currently Union Bank of India took possession
of the said land bearing block No.295 old survey No.328 and
erected a board displaying the order number of D.R.T.,
Ahmedabad and it stated that trespasser in the said land will
be prosecuted. The said order was recorded in the revenue
record vide entry No.6005 on 30/10/2006.
Thereafter, Andhra Bank issued a public notice
on 21/01/2008 for auction of the said land bearing block
No.295, old survey No.328, on the basis of which, the value
of the land was determined and it was auctioned and Taksh
Enterprise, 301, Taksh Classic, Vasna Road, Vadodara City
placed the highest bid of Rs.90,59,000/- for the said land and
therefore, the bank decided to sell out the said land to it.
Thereafter, while the process of executing a sale-deed was
underway by Andhra Bank, Pragneshbhai Shah, as the land
auctioned was registered in his name, filed an appeal bearing
case No.85/2008 challenging the order of the D.R.T.,
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Ahmedabad before the D.R.T., Mumbai. Therefore, the bank
could not execute a sale-deed in favour of Taksh Enterprise
and in 2014, Pragneshbhai Shah withdrew appeal case
No.85/2008 filed in the D.R.T., Mumbai. Thereafter,
Pragneshbhai Shah filed appeal No.2522/2015 in the Hon'ble
High Court of Gujarat, Ahmedabad and during that time,
Pragnesh Balkrushna Shah, Andhra Bank and Taksh
Enterprise conducted negotiations and determined the value
of the said land to be Rs.2,25,00,000/-, but Taksh Enterprise
refused to pay Rs.2,25,00,000/- and as Girishbhai
Jayantibhai Patel R/o 12, Shobhnanagar Society, Vasna
Road, Vadodara City agreed to pay Rs.2,25,00,000/-, the
case was settled in the High Court and the Hon'ble High
Court of Gujarat passed an order that Girishbhai Jayantibhai
Patel shall pay Rs.2,25,00,000/- to Andhra Bank and
Pragneshbhai Shah shall execute a sale-deed for the said land
in favour of Girishbhai Jayantibhai Patel by cooperating with
Andha Bank. In compliance with this order, Girishbhai
Jayantibhai Patel deposited the entire decided amount in the
Andhra Bank. Despite the bank frequently informing
Pragneshbhai Shah to execute the sale-deed, Pragneshbhai
Shah was not coming for giving his consent for executing the
sale-deed. Pragneshbhai Shah filed a new petition, No.
3280/2016 in the Hon'ble High Court of Gujarat by citing
that the settlement order passed by the Court in the Appeal
no. 2522/2015 was due to a misunderstanding on his part.
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As the Hon'ble High Court of Gujarat while hearing the
petition directed to maintain the earlier order, Pragneshbhai
Shah withdrew the petition. And thereafter, the sale-deed of
the land was to be executed in favour of Girishbhai
Jayantibhai Patel. However, despite Andhra Bank frequently
informing Pragneshbhai Shah to execute the sale-deed, he
was not coming for executing the sale-deed. Therefore, the
bank filed a contempt petition, No. 01/2019 against
Pragneshbhai in the Hon'ble High Court of Gujarat. However,
it has come to notice that Pragneshbhai has gone abroad.
We came to know about seven months ago that
Rameshbhai Dahyabhai Patel, R/o Sevasi, Teh.-Dist.
Vadodara did not have any title and share in the land under
possession of the bank, bearing Old Survey No. 328, Block
No. 295, located in the outskirts of Sevasi village; and
Viralbhai Ajmera had sold out the said land to Pragneshbhai
Shah by executing the sale-deed using his power of attorney.
It was fully known that on the basis of the sale-deed, a notice
of section 135-D was served to Rameshbhai Dahybhai Patel at
the time of mutation entry. He has not filed any complaint
regarding his title and share till 2019 i.e. for 17 years.
However, by taking benefit of the fact that Pragneshbhai had
gone abroad, and that the land was in the name of
Pragneshbhai and that Pragneshbhai, along with Andhra
Bank, was not executing the sale-deed in favour of the person
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who purchased the said land, and Pragneshbhai had gone
abroad without executing the sale-deed, Rameshbhai
Dahyabhai Patel, with an intention to grab and illegally
occupy the said land by hatching a conspiracy and in
collusion with each other, prepared the forged documents
such as an agreement of handing over possession of the
property mortgaged with the bank to Sanjaysinh Janaksinh
Mahida. Sanjaysinh Mahida, despite knowing that the said
land did not belong to Rameshbhai Patel, erected a board
claiming his title and share and constructed a pucca room on
the said land. Moreover, Rameshbhai Patel also executed a
power of attorney for the said land in favour of Shobhrajsinh
Madhavsinh Sindha; and despite him being aware of the fact
that the said land did not belong to Rameshbhai, he filed a
case under the Tenancy Act in the Agricultural Tribunal by
using a forged power of attorney and preparing forged
documents of the valuable land, despite knowing that
Shobhrajsinh Madhavsinh Sindha did not have any title or
share.
Therefore, when our bank came to know that
Rameshbhai Dahyabhai Patel, Sanjaysinh Janaksinh Mahida,
Shobrajsinh Madhavsinh Sindha, despite not having any title
or share in the said land, in collusion with one another,
prepared forged documents for grabbing the valuable land
and illegally occupied the said land by using those documents
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as originals, I sent Salimbhai Rasulbhai Ghanchi, a bank
employee, for inspection. When he visited the land under
possession of the bank, he noticed that the board displaying
the ownership of the bank had been removed and some
persons were constructing a room on that land. When they
were informed that the land belonged to the bank, they
replied that the land belonged to them and warned bank
employee not to visit the land. The bank employee,
Salimbhai, returned to the bank and elaborated the above
facts. Thereafter, Girishbhai Jayantibhai Patel who purchased
the land also made a visit to that land after knowing these
facts and came to know that the construction of the room
was underway on the said land; and Rameshbhai Dahyabhai
Patel, Sanjaysinh Janaksinh Mahida, Shobhrajsinh
Madhavsinh Sindha, Vikrambhai Devabhai Bharwad and
other ten-twelve Bharvads, whose names and addresses are
not known, asked Girishbhai not to visit that land as the land
belonged to them. They also threatened to kill him if he
visited the land again. Further, Vikrambhai Devabhai
Bharvad told Girishbhai that Sanjaybhai had handed over the
possession of the land to him; he owned the possession
through Sanjaybhai; and his men would remain deployed on
the land permanently; and warned of not making a mistake
of going there again. Girishbhai informed all these facts to
Bhanuprtapsinh, the Officer of the bank at that time. I came
to know about these facts from Bhanupratap.
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Therefore, the above persons (1) Rameshbhai
Dahyabhai Patel, R/o Sevasi, Teh.-Dist. Vadodara, (2)
Sanjaysinh Janaksinh Mahida, R/o Anand, (3) Shobhrajsinh
Madhavsinh Sindha, R/o C-21, Goverdhan Park, near Basera,
B/h Avadh Duplex, Tandalja, Vadodar City, and (4)
Vikrambhai Devabhai Bharvad, R/o Anand and other ten-
twelve Bharvads, whose names and addresses are not known,
despite having the knowledge that the land bearing Block No.
295, Old Survey No. 328, admeasuring about 8195 sq.m.,
located in the outskirts of Sevasi village was owned by the
Akota Branch of Andhra Bank, currently Union Bank of India,
since 2006, Rameshbhai Dahyabhai Patel had, in collusion
with one another, created forged agreements of handing over
the possession of the property mortgaged with the bank to
Sanjaysinh Janaksinh Mahida and by executing power of
attorney in favour of Shobhrajsinh Madhavsinh Sindha with
an intention to grab the said land; Shobhrajsinh Sindha by
filing a case under the Tenancy Act in the Agricultural
Tribunal and Sanjaysinh Mahida by erecting a board
displaying their title and share in the said land and by
constructing a pucca room and by keeping Vikrambhai
Devabhai Bharvad and other ten-twelve Bharvads present for
occupying the said land and by keeping Vikrambhai Bharvad
and other Bharvads with him, by threatening Girishbhai
Jayantibhai Patel to kill him, had grabbed the land after
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occupying it; I hereby register a complaint to take legal
action against all these persons. My witnesses are the persons
mentioned in the complaint and whosoever is found during
the investigation. The said offence has been committed from
30-10-2006 to date.
The facts of my complaint are true and correct as
per my dictation.
Before me,
...............
(A.K.Raolji)
Sr. Police Sub Inspector
Vadodara Taluka PS"
[5] Brief facts of the case can be stated as under:
[5.1] That an F.I.R. being C. R. No.11197005210914 of 2021
was registered with the Vadodara Taluka Police Station District :
Vadodara Rural on 17th June 2021 for the offence punishable
under Sections 465, 467, 468, 471, 406, 420, 427 and 447 read
with 120B of the Indian Penal Code against the present applicants
by the complainant for the same land bearing old survey No.328
Block No.292 in village : Sirasi, wherein it has been alleged that the
accused therein have by creating false and fabricated documents
taken over the possession of the land which was mortgaged with
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the bank. The said F.I.R. was investigated by the Investigating
Agency and chargesheet was also filed against the accused persons
therein.
[5.2] Pertinently, the complainant has also filed complaint in
the office of the Collector, Vadodara under the Gujarat Land
Grabbing (Prohibition) Act, 2020 against the same accused
persons. The Collector, Vadodara, after inquiry, directed vide its
order dated 13th October 2021 to register the F.I.R. under the
provisions of the Land Grabbing Act. Accordingly, the impugned
F.I.R. came to be registered on 14th October 2021 for the offence
punishable under Sections 3, 4(1), 4(2), 4(3) of the Gujarat Land
Grabbing (Prohibition) Act, 2020 and Section 506(2) of the Indian
Penal Code against the present applicants.
[5.3] Admittedly, there are two F.I.Rs. registered by the same
complainant against the same accused persons for the same land,
but one under the Indian Penal Code and the second one under the
provisions of the Land Grabbing Act.
[6] Being aggrieved and dissatisfied by the subsequent
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F.I.R. under the Land Grabbing Act, the present applicants have
approached this Court by way of these applications for the reliefs
stated hereinabove.
[7] I have heard learned Senior Advocate Mr. Percy Kavina
assisted by learned advocate Mr. M. M. Beg as well as learned
advocates Mr. Maulik Nanavati and Mr. Ashish Dagli for the
respective applicants and learned Senior Advocate Ms. Trusha Patel
assisted by Mr. Bhavesh Babariya for the respondent - complainant
and learned A.P.P. Mr. Himanshu K. Patel for the respondent -
State of Gujarat.
[8] Learned Senior Advocate Mr. Percy Kavina for the
applicants, while assailing the impugned F.I.R., has made mainly
following submissions:
[8.1] Learned Senior Advocate Mr. Kavina for the applicants
submitted that the impugned F.I.R. is the second F.I.R. by the same
complainant against the same accused persons for the same land.
He therefore submitted that the second F.I.R. is not maintainable in
the eye of law. Learned Senior Advocate Mr. Kavina submitted that
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lodgement of the second F.I.R. for the same set of allegations is
violation of Article 20(2) of the Constitution of India, thus, same
would amount to double jeopardy.
[8.2] Learned Senior Advocate Mr. Kavina for the applicants
submitted that registration of the second F.I.R. is nothing, but a
sheer abuse of the process of law and thereby, the same deserves to
be quashed and set aside by this Court under Section 482 of the
Cr.P.C. Learned Senior Advocate Mr. Kavina submitted that with
respect to the land in question, civil suit and tenancy proceedings
are already under adjudication and thereby, the impugned F.I.R.
under the provisions of the Land Grabbing Act is not tenable in the
eye of law.
[8.3] Learned Senior Advocate Mr. Kavina for the applicants,
in the alternative, submitted that all the accused persons are
agreeable for cooperation in the investigation of the impugned
F.I.R. registered for the offence under the Land Grabbing Act,
however, requested that in the event of filing of chargesheet, the
said chargesheet be merged with and / or the supplementary
chargesheet be merged with the chargesheet that has been filed for
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the offence punishable under the provisions of the Indian Penal
Code in connection with the first F.I.R. The learned Senior
Advocate Mr. Kavina submitted that the purpose for such an
alternative submission is obviously to avoid two trials of two F.I.Rs.
for the same land and between the same parties for the same land
in question.
[8.4] Learned Senior Advocate Mr. Kavina for the applicants
has placed heavy reliance on the decision of the Division Bench of
this Court in the case of Kamlesh Jivanlal Dave and another vs.
State of Gujarat and others [R/Special Civil Application No.2995 of
2021 and allied matters decided on 9th May 2024].
[8.5] By making above submissions, learned Senior Advocate
Mr. Kavina for the applicants have requested this Court to allow the
present applications as prayed for in the interest of justice.
[9] Learned advocate Mr. Maulik Nanavati for the other
applicants has adopted the arguments as canvassed by learned
Senior Advocate Mr. Percy Kavina and placed reliance on the
decisions of the Hon'ble Supreme Court in the case of Tarak Dash
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Mukherjee and others reported in 2022 SCC Online SC 2121 and in
the case of Amitbhai Anilchandra Shah vs. Central Bureau of
Investigation and another reported in (2013) 6 SCC 348.
[9.1] By making above submissions, learned advocate Mr.
Nanavati for the respective applicants requested this Court to allow
the present applications as prayed for in the interest of justice.
[10] Per contra, learned Senior Advocate Ms. Trusha Patel
assisted by learned advocate Mr. Bhavesh Babariya for the
respondent - complainant, while opposing the present applications,
made the following submissions:
[10.1] Learned Senior Advocate Ms. Patel for the
respondent - complainant submitted that the impugned F.I.R. has
been lodged under the provisions of the Land Grabbing Act which
is a Special Act. As per the provisions of the Special Act, a clear
cognizable offence has been made out and thereby, the Collector,
Vadodara has rightly ordered for registration of the F.I.R. against
the present applicants, therefore, this Court may not entertain the
present applications by exercising the inherent jurisdiction under
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Section 482 of the Cr.P.C.
[10.2] Learned Senior Advocate Ms. Patel for the
complainant submitted that the offence alleged in the impugned
F.I.R. under the Land Grabbing Act is completely distinct in nature
and thereby, cannot be said to be the same as the offence under the
Indian Penal Code registered under the first F.I.R. Learned Senior
Advocate Ms. Patel further submitted that merely there is an
overlapping allegations in both the F.I.Rs., it would not constitute
two offences registered under the two F.I.Rs. are the same and one.
Learned Senior Advocate Ms. Patel further submitted that the
offence under the Indian Penal Code and the offence under the
Special Act i.e. the Land Grabbing Act, both are independent in
nature and therefore, she submitted that the impugned F.I.R. may
not be quashed on the ground of sameness.
[10.3] Learned Senior Advocate Ms. Patel for the
complainant fervently submitted that the impugned F.I.R. has been
registered under the Special Act, whereas the first F.I.R. was
registered under the Indian Penal Code. She further submitted that
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both the legislation has distinct set of proceedings with respect to
registration of F.I.R., investigation, report, cognizance, relief and
thereby, scope of both the trials are distinctly separate and
therefore, cannot be tried together.
[10.4] Learned Senior Advocate Ms. Patel for the
complainant submitted that the offence under provisions of the
Land Grabbing Act is exclusively triable by the Special Court. She
further submitted that as per the provisions of the Land Grabbing
Act, the jurisdiction of the Special Court is limited to only the
offence committed under the Land Grabbing Act. Learned Senior
Advocate Ms. Shah submitted that on the other hand, the offence
under the Indian Penal Code, in the instant case, are exclusively
triable by the Court of learned Magistrate and thereby, the learned
Magistrate Court will not have any jurisdiction to try the offence
under the provisions of the Land Grabbing Act and thus, the second
F.I.R., which is under the provisions of the Land Grabbing Act,
cannot be clubbed with the first F.I.R.
[10.5] Learned Senior Advocate Ms. Patel for the
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complainant placed reliance on the following decisions:
(i) The decision of the Hon'ble Supreme Court in the case
of Sangeetaben Mahendrabhai Patel vs. State of Gujarat
reported in 2012(2) G.L.H. 145;
(ii) The decision of the Hon'ble Supreme Court in the case
of Pradeep S. Wodeyar vs. State of Karnataka reported
in (2021) 19 SCC 62;
(iii) The decision of the Hon'ble Supreme Court in the case
of Vivek Gupta vs. Central Bureau of Investigation
reported in 2003(8) SCC 628;
(iv) The decision of the Hon'ble Supreme Court in the case
of Anju Chaudhary vs. State of Uttar Pradesh reported
in (2013) 6 SCC 384;
(v) The decision of the Hon'ble Supreme Court in the case
of Abhishek Singh Chauhan vs. Union of India and
others reported in 2022 SCC Online SC 1936;
(vi) The decision of the Hon'ble Supreme Court in the case
of T. T. Antony vs. State of Kerala reported in 2001 (6)
SCC 181;
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(vii) The decision of the Hon'ble Supreme Court in the case
of Arnab Ranjan Goswami vs. Union of India reported
in 2020 (14) SCC 12;
(viii) The decision of the Hon'ble Supreme Court in the case
of Amish Devgan vs. Union of India reported in 2021(1)
SCC 1;
(ix) The decision of this Court in the case of Yogesh
Premjibhai Suvariya vs. State of Gujarat reported in
2021(2) GLH 691.
[10.6] By making above submissions, learned Senior
Advocate Ms. Patel for the complainant requested this Court to
dismiss the present applications.
[11] Learned A.P.P. Mr. Himanshu K. Patel for the
respondent - State of Gujarat has adopted all the submissions as
canvassed by learned Senior Advocate Ms. Patel for the respondent
- complainant and requested this Court to dismiss the present
applications.
[12] I have heard learned advocates appearing for the
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respective parties and have gone through the material produced on
record in detail. No further and other submissions have been
canvassed by the learned advocates appearing for the respective
parties except what are stated hereinabove.
[13] Having heard the submissions of the learned advocates
appearing for the respective parties and having gone through the
material produced on record, the following questions fall for
consideration of this Court:
(i) Whether second F.I.R. / subsequent F.I.R. between the
same parties on overlapping set of allegations for the
offences punishable under the different Act would be
maintainable?
(ii) Whether allowing the criminal proceedings arising from
the subsequent F.I.R. between the same parties under
the different Act is violative of Article 20(2) of the
Constitution of India?
(iii) Whether offences falling under the two different
statutes on overlapping set of allegations between the
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same parties can be clubbed together holding it as one
and the same?
[14] So as to decide the aforesaid questions, in my view, it is
necessary to consider the provisions of Section 4 of the Cr.P.C. as
well as the scheme and the Act of the Special Act i.e. the Land
Grabbing Act. For the sake of brevity, the relevant provisions are
extracted hereinbelow?
"4. Trial of offences under the Indian Penal Code and other
laws.--(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to
the same provisions, but subject to any enactment for the
time being in force regulating the manner of place of
investigating, inquiring into, trying or otherwise dealing with
such offences."
[15] Upon careful consideration of the aforesaid provisions
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of Section 4 of the Cr.P.C., it appears that the said section is
divided into two parts. Section 4(1) pertains to the offences under
the Indian Penal Code. Section 4(1) further says that the
investigation, inquiry and trial to be done as per the provisions of
the Cr.P.C. The second part i.e. Section 4(2), which is relevant,
pertains to all the offences that are falling under any other law
shall be investigated, inquired, and tried subject to any other
enactment regulating the manner or place of investigating,
inquiring into and trying the same. Thus, Section 4 of the Cr.P.C.
has itself made it clear that the mode of investigation, inquiry and
trial is different when the offences are committed under the Indian
Penal Code and committed in any other statute other than the
Indian Penal Code. Therefore, in the instant case, the offences are
alleged under the Land Grabbing Act, thereby, as per the provisions
of Section 4 of the Cr.P.C., investigation, inquiry and trial would be
subject to the provisions of the Land Grabbing Act.
[16] It would, thus, be apt to take note of the provisions of
the Land Grabbing Act, its scheme and thereby, at this stage, it is
pertinent to take note of the observations of the Division Bench of
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this Court in the case of Kamlesh Jivanlal Dave (supra) made in
paras 234, 235, 236 and 237, which read as under:
"234. Taking clue from the above observations of the Apex
Court referring to the pari materia provisions of the A.P. Act,
when we look to the provisions of the impugned enactment,
we find that the impugned enactment has been brought to
remedy the mischief of land grabbing. The activity of
grabbing of any land (whether belonging to the Government,
local authority, a religious or charitable institution or
endowment or any private person) by a person or group of
persons, such grabbing must be :
(i) without any lawful entitlement, and (ii) with a view to:
(a) illegally taking possession of such lands; (b) or to enter
into or create illegal tenancies, lease or licence or any other
illegal agreements in respect of such lands; (c) to construct
unauthorised structures thereon for sale or hire; or use or
occupation of such unauthorized structures and the term
"grabbed land" is to be construed in the same manner.
235. The meaning of the expression "land grabber" in Section
2(d) is inclusive, to take in its fold:(i) a person or a group of
persons, who commits land grabbing ; (ii) a person who gives
financial aid to any person for (a) taking illegal possession of
the lands, or (b) construction of unauthorized structures
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thereon; (iii) a person who collects or attempts to collect
from any occupiers of such lands rent, compensation and
other charges by criminal intimidation; (iv) a person who
abets the doing of any of the above mentioned acts ; (v) the
successors in interest of such a person.
236. The expression "land grabber" and "land grabbing" have
been defined in a very broad sense by giving a wide meaning
to umbrage all such persons, who commit, financiers and
abettors within the ambit of "land grabber" and even an
attempt within the ambit of land grabbing. As per Section 3,
the land grabbing in any form and any act connected with or
arising out of the land grabbing has been made a criminal
offence. The broad sweep of the penal provision is indicative
of the legislative intent to punish all those who are connected
with the offence of land grabbing, directly or indirectly in the
manner provided therein. The Special Court are constituted
and a time line has been given to dispose of the complaints of
land grabbing, which is further indicative of the intention of
the legislature to curb and punish unlawful activity of the
land grabbing.
237. When the Statement of Objects and Reasons of the Act
are read conjointly with the various Sections of the Gujarat
Land Grabbing (Prohibition) Act, 2020, it is evident that the
legislature had conceived of only one class of lands, which is
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"grabbed lands" and the offence or mischief which the law
aims to remedy is "grabbing of lands in the State". The term
"grabbing" includes all types of activities, whereby a person
takes possession of land, forcibly, dishonestly, violently,
unauthorizedly or by unscrupulous means. It is, therefore,
difficult to comprehend as to how persons, who commit
offence of land grabbing in relation to the lands belonging to
a private persons would fall in a separate class, when they
entered into private person's property to take possession or
deal with the same by creating unauthorized tenancies etc,
they would otherwise be a land grabber. The ingredients of
land grabbing, noted above, of occupying or attempt to
occupy a private person's property having no ownership, title
or physical possession, without any lawful entitlement, would
all be present even in a case of activity to occupy or attempt
to occupy a private person's property. It is axiomatic that so
long as the land grabber occupies private property, he would
be forming a different class or would be excluded from the
purview of the Act, the main object of which is to prohibit the
unlawful activities of land grabbing in the State. The question
in regard to lawful entitlement of the occupier, therefore, for
invoking the charging section plays an important and
significant role. The petitioners have failed to show that "any
activity of land grabbing" in relation to any land belonging to
a private person, falls in a separate class and the occupant or
the offenders cannot be included within the meaning of "land
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grabber" under the Act 2020."
[17] Keeping in mind the object and purpose of the scheme,
it is necessary to consider the provisions of the Land Grabbing Act.
Section 7 of the Land Grabbing Act reads as under:
"7. Constitution of Special Courts. (1) The State Government
may, with the concurrence of the Chief Justice of the High
Court of Gujarat, by notification in the Official Gazette
constitute one or more Special Courts for such area or areas,
or for such cases or class or group of cases, as may be
specified in the notification.
(2) Where any question arises as to the jurisdiction of any
Special Court, it shall be referred to the State Government,
whose decision in the matter shall be final.
(3) A Special Court shall be presided over by a judge to be
appointed by the State Government with the concurrence of
the Chief Justice of the High Court of the Gujarat.
(4) The State Government may also appoint, with the
concurrence of the Chief Justice of the High Court of Gujarat,
Additional Judges to exercise jurisdiction of the Special
Court.
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(5) A person shall not be qualified for appointment as a
Judge or an Additional Judge of a Special Court unless he
immediately before such appointment, is or has been a
Sessions Judge or a District Judge.
(6) The Government from time to time may, by notification
in the Official Gazette, reconstitute the Special Courts
constituted under sub-section (1) and may, at any time
abolish such Special Courts by a like notification.
(7) A Judge of the Special Court shall hold office for a term
of three years from the date on which he enters upon his
office, or until the Special Court is reconstituted or abolished
under sub-section (6), whichever is earlier."
In view of Section 7 of the Land Grabbing Act, constitution of
Special Court by the State Government with the concurrent of the
Chief Justice of the High Court of Gujarat has been provided. The
person qualified to be appointed as a Special Judge is necessarily to
be a Sessions Judge or a District Judge. Meaning thereby, the
offences under the Land Grabbing Act is to be tried by the Special
constituted Court only and the Special Judge shall be not below the
rank of a Sessions Judge or a District Judge.
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[17.1] Section 9 of the Land Grabbing Act reads as
under:
"9. Procedure and powers of Special Courts.
(1) The Special Court may, either suo moto or on application
made by any person, or any officer authorized by District
Collector, take cognizance of and try every case arising out of
any alleged act of land grabbing or with respect to the
ownership and title to, or lawful possession of, the land
grabbed, whether before or after the commencement of this
Act, and pass such orders (including orders by way of interim
directions) as it deems fit.
Provided that if, in the opinion of the Special Court,
any application filed before it is prima facie frivolous or
vexatious, it shall reject the same without any further
enquiry;
(2) Notwithstanding anything in the Code of Civil Procedure,
1908, any case in respect of an alleged act of land grabbing
or the determination of question of title and ownership to, or
lawful possession of any land grabbed under this Act, shall,
subject to the provisions of this Act, be triable in the Special
Court and the decision of Special Court shall be final.
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(3) Notwithstanding anything in the Code of Civil Procedure
1908, the Special Court may follow its own procedure which
shall not be inconsistent with the principles of natural justice
and fair play and subject to the other provisions of this Act
and of any rules made thereunder while deciding the Civil
liability,
(4) Notwithstanding anything in the Code of Criminal
Procedure, 1973, it shall be lawful for the Special Court to try
all offences punishable under this Act.
(5) The Special Court shall determine the order in which the
civil and criminal liability against a land grabber be initiated.
It shall be within the discretion of the Special Court whether
or not to deliver its decision or order until both civil and
criminal proceedings are completed. The evidence admitted
during the criminal proceeding may be made use of while
trying the civil liability. But additional evidence, if any,
adduced in the civil proceedings shall not be considered by
the Special Court while determining the criminal liability.
Any person accused of land grabbing or the abetment thereof
before the Special Court shall be a competent witness for the
defence and may give evidence on oath in disproof of the
charge made against him or any person charged together
with him in the criminal proceeding:
Provided that he shall neither be called as a witness
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except on his own request in writing nor shall his failure to
give evidence be made the subject of any comment by any of
the parties or the special court or give rise to any
presumption against himself or any person charged together
with him at the same proceedings.
(6) Every case under sub-section (1) shall be disposed off
finally by the Special Court, as far as possible, within a period
of six months from the date of institution of the case before
it.
(7) Every finding of the Special Court with regard to any
alleged act of land grabbing shall be conclusive proof of the
fact of land grabbing and of the persons who committed such
land grabbing, and every judgment of the Special Court with
regard to the determination of title and ownership to, or
lawful possession of, any land grabbed shall be binding on all
persons having interest in such land.
Provided that the Special Court shall, by public notice
specify the fact of taking cognizance of the case under this
Act. Such notification shall state that any objection which
may be received by the Special Court from any person within
the period specified therein shall be considered by it:
Provided further that the Special Court shall cause a
notice of taking cognizance of the case under the Act served
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on any person known or believed to be interested in the land,
after satisfying itself about the persons likely to be interested
in the land.
(8) When an offence of land grabbing is proved, the Special
Court may if it thinks fit, order that possession of the same be
restored to that person after evicting by force, if necessary,
any other person who may be in possession of the property.
(9) It shall be lawful for the Special Court to pass such order
as it may deem fit to advance the cause of justice. It may
award compensation in terms of money for wrongful
possession of the land grabbed which shall not be less than
an amount equivalent to the Jantri value of the land grabbed
as on the date of the order and profits accrued from the land
payable by the land grabber to the owner of the grabbed land
and may direct re-delivery of the grabbed land to its rightful
owner. The amount of compensation and profits, so awarded
and costs of re-delivery, if any, shall be recovered as an
arrear of land revenue in case the Government is the owner,
or as a decree of a civil court, in any other case to be
executed by the Special Court:
Provided that the Special Court shall, before passing an
order under this sub-section, give to the land grabber an
opportunity of making his representation or of adducing
evidence, if any, in this regard, and consider such
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representation and evidence."
Considering the provisions of Section 9, it is amply clear that
legislature has prescribed independent procedure and power of the
Special Court for the adjudication of the offences under the Land
Grabbing Act. As per the provisions of Section 9, the offence
alleged under the Land Grabbing Act, it is only the Special Court
who can take cognizance of the offence by adopting its own
procedure, however, shall not be inconsistent with the principles of
natural justice and fair play. The Special Court shall be designated
to try all the offences under the provisions of the Land Grabbing
Act only. The Special Court has been empowered not only to take
cognizance of an offence under the Land Grabbing Act on a
criminal side, but is also empowered to determine the questions of
title and ownership or lawful possession of any land grabbed. The
Special Court has been further empowered to restore the possession
alleged to have been taken over by the land grabbers. In sum and
substance, the Special Courts are created and empowered with
special powers to adjudicate / try criminal offences and at the same
time, civil dispute as well.
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[17.2] Section 11 of the Land Grabbing Act reads as
under:
"11. Burden of proof.
(1) Where in any proceedings under this Act, a land is
alleged to have been grabbed, and such land is primafacie
proved to be the land owned by the Government or by a
private person, the Special Court shall presume that the
person who is alleged to have grabbed the land is a land-
grabber and the burden of proving that the land has not been
grabbed by him shall be on such person.
(2) Where it is proved that a land grabber or any person on
his behalf is or has at any time been, in possession of
movable or immovable property which he cannot
satisfactorily account for, or where his pecuniary resources
are disproportionate to his known sources of income, the
Court shall, unless contrary is proved, presume that such
property or pecuniary resources have been acquired or
derived by his activities as a land grabber."
Considering the provisions of Section 11, unlike any other
criminal law, the onus has been cast upon the person who has
alleged to have grabbed the land. In the common and general
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criminal law and practice, it is the accused who is presumed to be
innocent till the contrary is proved and thereby, entire burden is on
the prosecution side to prove the commission of offence, whereas
under the Special Act i.e. the Land Grabbing Act, the person who is
alleged to have been grabbed the land is a land grabber and burden
of proving the land has not been grabbed by him has to be
discharged by him at the first instance. Thus, mens rea is not to be
proved by the prosecution under the Land Grabbing Act unlike
other offences of the Indian Penal Code.
[17.3] Section 12 of the Land Grabbing Act reads as
under:
"12. Information to be recorded and investigation to be
carried out by the police officer.
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973,-
(a) no information about the commission of an offence under
this Act, shall be recorded by a police officer without the
prior approval of the District Collector in consultation with
the Committee notified by the Government;
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(b) no investigation of an offence under the provision of this
Act shall be carried out by a police officer below the rank of
the Deputy Superintendent of Police, or for the areas where
the Commissioner of Police is appointed by the State
Government, by a police officer not below the rank of the
Assistant Commissioner of Police."
Considering the aforesaid provisions, even lodgement of
F.I.R. about commission of offence is subject to prior approval of
the District Collector in consultation with the Committee
prescribed, meaning thereby, unlike Section 154 of the Cr.P.C., the
direct F.I.R. cannot be registered. The aforesaid section further
specifies the officer who can investigate the offence i.e. not below
the rank of Dy.S.P. and / or by the Assistant Commissioner of
Police.
[18] At this juncture, it is relevant to take note of a decision
of the Hon'ble Apex Court in the case of Amitbhai Anilchandra
Shah (supra), wherein the Hon'ble Apex Court has, after taking
into account catena of decisions, settled the proposition of law with
regard to subsequent F.I.R. for the same offence and / or clubbing
of the two F.I.Rs. The relevant observations made in paras 36 to 56
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and 58.1 to 60 read as under:
"Legal aspect as to permissibility / impermissibility of second
FIR
36. Now, let us consider the legal aspects raised by the
petitioner-Amit Shah as well as the CBI. The factual details
which we have discussed in the earlier paragraphs show that
right from the inception of entrustment of investigation to
the CBI by order dated 12.01.2010 till filing of the charge
sheet dated 04.09.2012, this Court has also treated the
alleged fake encounter of Tulsiram Prajapati to be an
outcome of one single conspiracy alleged to have been
hatched in November, 2005 which ultimately culminated in
2006. In such circumstances, the filing of the second FIR and
a fresh charge sheet for the same is contrary to the provisions
of the Code suggesting that the petitioner was not being
investigated, prosecuted and tried 'in accordance with law' .
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. 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
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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 sub-
section (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, 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
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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) 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.
38. Mr. Rawal, learned ASG, by referring T.T. Anthony vs.
State of Kerala (Delhi Admn.), (1979) 2 SCC 322 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
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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, re-affirmed in the following subsequent
decisions of this Court: (1). Upkar Singh vs. Ved Prakash
(2004) 13 SCC 292 (2) Babubhai vs. State of Gujarat & Ors.
(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.
39. 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:-
39.1 The larger conspiracy allegedly commenced in
November, 2005 and culminated into the murder of Tulsiram
Prajapati in December, 2006 in a fake encounter;
39.2 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
39.3. Tulsiram Prajapati was allegedly kept under the control
of accused police officers, as a part of the same conspiracy,
till the time he was allegedly killed in a fake encounter.
40. In view of the factual situation as projected by the CBI
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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)].
41. In view of the consistent stand taken by the CBI, at this
juncture, CBI may not be permitted to adopt a contradictory
stand.
42. 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.
43. 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.
44. 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, had 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
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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 120-B 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."
45. In State of A.P. v. Kandimalla Subbaiah AIR 1961 SC
1241, 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.
46. In State of A.P. v. Cheemalapati Ganeswara Rao AIR
1963 SC 1850, 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 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
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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". ....
47. Learned ASG placed reliance on the following
decisions: (i) Anju Chaudhary vs. State of U.P. & Anr.,
2012(12) Scale 619 (ii) Babubhai vs. State of Gujarat (2010)
12 SCC 254 (iii) Surender Kaushik & Ors. vs. State of U.P. &
Ors., JT 2013 (3) SC (iv) Nirmal Singh Kahlon vs. State of
Punjab (2009) 1 SCC 441 (v) Ram Lal Narang vs. State
(Delhi Admn.), (1979) 2 SCC 322 (vi) Upkar Singh vs. Ved
Prakash & Ors. (2004) 13 SCC 292 (vii) Kari Choudhary vs.
Mst. Sita Devi & Ors. (2002) 1 SCC 714.
48. In Anju Chaudhary (supra) this Court was concerned
with a case in which the second FIR was not connected with
the offence alleged in the first FIR. After carefully analyzing
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the same, we are of the view that it has no relevance to the
facts of the present case.
49. In 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
"21....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.
50. The CBI has also placed reliance on a recent decision
of this Court in Surender Kaushik (supra). A careful perusal
of the facts which arose in the said case would disclose that
three FIRs which formed the subject matter of the said case
were registered by three different complainants. Two of the
FIRs consisted of cross cases inasmuch as the complainant of
the first FIR was accused in the other while the accused in
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the first FIR was the complainant in the second FIR. The third
FIR was filed by a third person citing both the complainants
of first two FIRs as accused persons. In view of the above
peculiar facts situation arising in the said case that the
second and third FIRs were not quashed by the High Court,
which decision was upheld by this Court, we are satisfied that
the said decision has no relevance to the facts of the present
case.
51. In Nirmal Singh Kahlon (supra), this Court has carved
out an exception for filing a second FIR. As per the exception
carved out in the said case, the second FIR lies in a case
where the first FIR does not contain any allegations of
criminal conspiracy. On the other hand, in the case on hand,
the first FIR itself discloses an offence of alleged criminal
conspiracy and it was this conspiracy which the CBI was
directed to unearth in the judgment dated 12.01.2010 based
on which the CBI filed its first FIR, hence, the CBI cannot
place reliance on this judgment to justify the filing of the
second FIR and a fresh charge sheet.
52. Ram Lal Narang (supra) was cited to be an authority
carving out an exception to the general rule that there cannot
be a second FIR in respect of the same offence. This Court, in
the said decision, held that a second FIR would lie in an
event when pursuant to the investigation in the first FIR, a
larger conspiracy is disclosed, which was not part of the first
FIR. In the case on hand, while entrusting the investigation of
the case relating to the killing of Sohrabuddin and Kausarbi
to the CBI, this Court, by order dated 12.01.2010, expressed
a suspicion that Tulsiram Prajapati could have been killed
because he was an eye witness to the killings of Sohrabuddin
and Kausarbi.
53. The CBI also filed an FIR on 01.02.2010 based upon
the aforesaid judgment dated 12.01.2010 and conducted the
investigation reaching to a conclusion that conspiracy to kill
Sohrabuddin and Kausarbi and conspiracy to kill Tulsiram
Prajapati were part of the same transaction inasmuch as both
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these conspiracies were entered into from the very outset in
November, 2005. Based upon its investigation, the CBI filed a
status report (s) before this Court and an affidavit in Writ
Petition (Crl.) No. 115 of 2007 bringing to the notice of this
Court that killing of Tulsiram Prajapati was also a part of the
same transaction and very same conspiracy in which killings
of Sohrabuddin and Kausarbi took place and unless the CBI is
entrusted with the investigation of Tulsiram case, it will not
be able to unearth the larger conspiracy covered in the first
FIR. The fact that even as per the CBI, the scope of
conspiracy included alleged killing of Sohrabuddin and
Kausarbi and alleged offence of killing of Tulsiram Prajapati
and the same is unequivocally established by the order
passed by this Court on 12.08.2010 in Writ Petition (Crl.) No.
6 of 2007 which is fortified by the status report dated
11.11.2011 filed by the CBI has already been extracted in
paragraphs supra.
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.
55. Upkar Singh (supra) also carves out a second exception
to the rule prohibiting lodging of second FIR for the same
offence or different offences committed in the course of the
transaction disclosed in the first FIR. The only exception to
the law declared in T.T. Anthony (supra), which is carved out
in Upkar Singh (supra) is to the effect that when the second
FIR consists of alleged offences which are in the nature of the
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cross case/cross complaint or a counter complaint, such cross
complaint would not be permitted as second FIR. In the case
on hand, it is not the case of the CBI that the FIR in Tulsiram
Prajapati's case is a cross FIR or a counter complaint to the
FIR filed in Sohrabuddin and Kausarbi's case being FIR dated
01.02.2010.
56. The ratio laid down in Kari Choudhary's case is
heavily relied on by learned ASG appearing for the CBI. In
that decision, it was held that when there are two rival
versions in respect of the same episode, they would normally
take the shape of two different FIRs and investigation can be
carried on under both of them by the same investigating
agency. While there is no quarrel as to the above proposition,
after carefully considering the factual position, we are of the
view that the said decision is not helpful to the case on hand.
* * *
"Summary
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.
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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. 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.
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.
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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.
58.6. In the case on hand, as explained in the earlier paras,
in our opinion, the second FIR was nothing but a
consequence of the event which had taken place on
25/26.11.2005. We have already concluded that this Court
having reposed faith in the CBI accepted their contention that
Tulsiram Prajapati encounter is a part of the same chain of
events in which Sohrabuddin and Kausarbi were killed and
directed the CBI to "take up" the investigation.
58.7. For vivid understanding, let us consider a situation in
which Mr. 'A' having killed 'B' with the aid of 'C', informs the
police that unknown persons killed 'B'. During investigation,
it revealed that 'A' was the real culprit and 'D' abetted 'A' to
commit the murder. As a result, the police officer files the
charge sheet under Section 173(2) of the Code with the
Magistrate. Although, in due course, it was discovered
through further investigation that the person who abetted
Mr. 'A' was 'C' and not 'D' as mentioned in the charge sheet
filed under Section 173 of the Code. In such a scenario,
uncovering of the later fact that 'C' is the real abettor will not
demand a second FIR rather a supplementary charge sheet
under section 173(8) of the Code will serve the purpose.
58.8. Likewise, in the case on hand, initially the CBI took a
stand that the third person accompanying Sohrabbuddin and
Kausarbi was Kalimuddin. However, with the aid of further
investigation, it unveiled that the third person was Tulsiram
Prajapati. Therefore, only as a result of further investigation,
the CBI has gathered the information that the third person
was Tulsiram Prajapati. Thus a second FIR in the given facts
and circumstances is unwarranted; instead filing of a
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supplementary charge sheet in this regard will suffice the
issue.
58.9. Administering criminal justice is a two-end process,
where guarding the ensured rights of the accused under
Constitution is as imperative as ensuring justice to the victim.
It is definitely a daunting task but equally a compelling
responsibility vested on the court of law to protect and shield
the rights of both. Thus, a just balance between the
fundamental rights of the accused guaranteed under the
Constitution and the expansive power of the police to
investigate a cognizable offence has to be struck by the court.
Accordingly, 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. As a consequence, in our
view this is a fit case for quashing the second F.I.R to meet
the ends of justice.
58.10. The investigating officers are the kingpins
in the criminal justice system. Their reliable investigation is
the leading step towards affirming complete justice to the
victims of the case. Hence they are bestowed with dual duties
i.e. to investigate the matter exhaustively and subsequently
collect reliable evidences to establish the same.
Conclusion:
59. In the light of the specific stand taken by the CBI
before this Court in the earlier proceedings by way of
assertion in the form of counter affidavit, status reports, etc.
we are of the view that filing of the second FIR and fresh
charge sheet is violative of fundamental rights under Article
14, 20 and 21 of the Constitution since the same relate to
alleged offence in respect of which an FIR had already been
filed and the court has taken cognizance. This Court
categorically accepted the CBI's plea that killing of Tulsiram
Prajapati is a part of the same series of cognizable offence
forming part of the first FIR and in spite of the fact that this
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Court directed the CBI to "take over" the investigation and
did not grant the relief as prayed, namely, registration of
fresh FIR, the present action of CBI filing fresh FIR is contrary
to various judicial pronouncements which is demonstrated in
the earlier part of our judgment.
60. In view of the above discussion and conclusion, the
second FIR dated 29.04.2011 being RC No.
3(S)/2011/Mumbai filed by the CBI is contrary to the
directions issued in judgment and order dated 08.04.2011 by
this Court in Writ Petition (Criminal) No. 115 of 2009 and
accordingly the same is quashed. As a consequence, the
charge sheet filed on 04.09.2012, in pursuance of the second
FIR, be treated as a supplementary charge sheet in the first
FIR. It is made clear that we have not gone into the merits of
the claim of both the parties and it is for the trial Court to
decide the same in accordance with law. Consequently, Writ
Petition (Criminal) No. 149 of 2012 is allowed. Since the said
relief is applicable to all the persons arrayed as accused in the
second FIR, no further direction is required in Writ Petition
(Criminal) No. 5 of 2013."
[19] Having considered the aforesaid decision, in my view, it
is appropriate to know under what facts and circumstances,
proposition of law was settled. It appears that a broad prayer made
therein before the Hon'ble Apex Court was with regard to
quashment of second F.I.R. that was filed by the CBI and not
seeking quashment of investigation. A further prayer was the
chargesheet that was filed by the CBI be treated as a supplementary
chargesheet in the first F.I.R. so that the fundamental right under
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Article 21 of the Constitution of India is not infringed. In light of
the said prayer and the broad fact that the first F.I.R. was filed for
false encounter of one Sohrabuddin and Kausarbi and the second
F.I.R. by the CBI was filed for the alleged fake encounter of one
Tulsiram Prajapati who was an eyewitness to the abduction and
consequent murder of Sohrabuddin and Kausarbi. Tulsiram
Prajapati was allegedly kept under the control of the accused police
officer as a part of the same conspiracy till the time he was
allegedly killed in fake encounter. In the case before the Hon'ble
Supreme Court, in both the F.I.Rs., the offences are punishable
under the General Criminal Law i.e. the Indian Penal Code and
thereby, considering the various provisions of the Code of Criminal
Procedure, 1973 i.e. Sections 154 to 162, 169, 170, 173(8) and
220, the Hon'ble Supreme Court held that lodgement of second
F.I.R. and a fresh chargesheet is violative of the fundamental right
under Articles 14, 20 and 21 of the Constitution of India and
thereby, the second F.I.R. was ordered to be quashed and the
chargesheet filed pursuant to the second F.I.R. is directed to be
treated as a supplementary chargesheet in the first F.I.R.
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[20] Turning to the facts of the case on hand, true it is that
in both the F.I.Rs., the disputed land is the same, parties are the
same and some allegations are overlapping, however, when
oneness, sameness and / or continuing offences are to be
considered, the same can be weighed only when the offences
committed under the one and the same Act. If an act is an offence
under the two distinct Act, second F.I.R. / subsequent F.I.R. cannot
be said to be the same as the first F.I.R. I say so because one
common Act may have the effects of two different offences, as
envisaged under the two different Acts. For better understanding,
this Court would like to explain by giving an illustration. Assuming
that 'X' person has issued a postdated cheque in lieu of some goods
and / or the services that he received from person 'Y' and
subsequently, the said cheque is dishonoured on the ground of stop
payment and / or due to insufficient fund, in that event, upon
dishonouring of cheque, person 'X' drawer of the said cheque said
to have committed an offence under Section 138 of the Negotiable
Instruments Act, which is a Special Act. At the same time, person 'Y'
may also file an F.I.R. under Section 406 and / or 420 of the Indian
Penal Code alleging that person 'X' drawer of the cheque had an
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intention to cheat from inception and thereby, by issuing a cheque
deceived the person 'Y' to give goods and render services. In that
event, if the F.I.R. is filed and the investigation reveals that at the
time of issuance of cheque, there was no fund at all in the account
and the funds were diverted after the issuance of cheque so as to
render the instrument dishonoured, then, in that event, mens rea of
the drawer of the cheque, prima facie, said to have been made out
and thereby, the offence punishable under Section 406 and / or
420 of the Indian Penal Code, as the case may be, is liable to be
prosecuted. In the instant case, if prima facie offence is made out in
the second F.I.R. under Land Grabbing Act, it is the right of the
complainant to pursue the remedy available under the Special Act.
At this stage, this Court would like to refer a decision of the
Allahabad High Court in the case of Emperor vs. Joti Prasad Gupta
reported in AIR 1932 Allahabad 18, wherein the issue was whether
conviction recorded under Section 9(a) of Salt Act (Act 12 of 1888)
and Section 117 of the Indian Penal Code was legally justifiable
where the provision had been made in Clause (c) of Section 9 of
the said Act for the punishment of abetment of offences under
Clauses (a) and (b) of Section 9. The main bone of contention
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therein was that an act of abetment in contravention of the Salt law
is an offence under the Salt Act and cannot be an independent
offence under the Penal Code as the abetment of offence under
Sections 9(a) and 9(b), Salt Act, is a substantive offence under
Section 9(c) of the said Act and punishment has been provided in
the said Act for the abetment of the offences under Sections 9(a)
and 9(b) and thereby, a separate offence of abetment cannot be
made out under the Penal Code. The relevant observations made by
the Allahabad High Court in the case of Joti Prasad Gupta (supra)
can be read thus as under:
"9. Laws regulating the manufacture of salt, appear to have
been made at a very early period of the British rule in this
country. We emphasize the fact that Act 12 of 1882 did not
for the first time declare certain acts done in contravention of
that Act or of any rule made thereunder to be offences which
were punishable by fine or imprisonment for nonpayment of
fine. Similar provisions were made in Sections 4 and 7, Act
14 of 1843 which was applicable to the North Western
Provinces of the Presidency of Bengal. Section 4 ran thus:
"And it is further enacted that from and after 1st
September 1843, the manufacture of alimentary salt
throughout the North Western Provinces of the
Presidency of Bengal without the express sanction of
the Government is prohibited : and that any person
engaging in the manufacture of such salt, or preparing
or causing to be prepared works for the manufacture of
such salt, without such sanction, and all zamindars or
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other proprietors of land, or their agents, conniving at
such illicit manufacture, shall on conviction by the
Magistrate, within the limits of whose district the
offence may have occurred, be punished by a fine not
exceeding Rs. 500, and on nonpayment of such fine by
imprisonment not exceeding six months with or
without hard labour, and that all works at which such
manufacture was often conducted or which have design
for such manufacture shall be destroyed, and any salt
which may be manufactured or stored thereat shall be
seized and confiscated. Section 7 inter alia provided for
the offence of abetment and was expressed in the
following words. And it is further enacted that all
persons evading or attempting to evade the payment of
the duties imposed by this Act and all persons aiding or
abetting such attempts or evasions or in any manner
acting in contravention of the Act, or of any order made
and issued under the provisions thereof and all
zamindars and other proprietors of land or their agents,
who shall wilfully connive at such attempts or evasions
or aid such acts, shall on conviction by the Magistrate
within the limits of whose district the offence may have
occurred be punished by a fine not exceeding Rs. 500
and on nonpayment thereof by imprisonment not
exceeding six months with or without hard labour."
10. The infraction of the Salt law and the abetment of certain
offences under the Salt law were therefore offences under Act
14 of 1843 and were punishable with fine or with
imprisonment for nonpayment of fine. Under Act 12 of 1882,
they continued to be offences, but the sentences provided for
the offences are slightly different as would appear from the
following text of Section 9 of the Act:
"Whoever commits any of the following offences (viz). :
(a) does anything in contravention of this Act or of any
rule made here-under; (b) evades payment of any duty
or charge payable under this Act or any such rule; or
(c) attempts to commit or abets within the meaning of
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the Penal Code, the commission of any of the offences
mentioned in Clauses (a) and (b) of this section, shall,
for every such offence, be punished with fine which
may extend to Rs. 500, or with imprisonment for a
term which may extend to six months, or with both."
11. The general criminal law of the land is to be found in Act
45 of 1860, which received the assent of the Governor-
General in Council on 6th October 1860. It has been provided
in Section 40, I.P.C. that the word "offence" in Section 117 of
the Code denotes a thing punishable under this Code or
under a special or local law as hereinafter defined. This
provision was not to be found in the Penal Code as originally
enacted but was introduced for the first time under Act 27 of
1870. The effect of this section is to make every thing
punishable under a special law an offence within the
meaning of the amendment was to enlarge the scope of the
Penal Code by making offences under special law also
offences under the Penal Code. The result therefore was that
offences under the Excise Act (Act 12 of 1896), under the
Post Office Act (Act 6 of 1898), under the Explosive
Substances Act, (Act 6 of 1908) or the Police Act (Act 5 of
1861) or under the Registration Act became also offences
under the Penal Code. In these Acts, the abetment of certain
offences has been provided for as a substantive offence. We
refer to Section 59, Excise Act, to Section 70, Post Office Act,
Section 12, Explosives Act, Section 6, Explosive Substances
Act, Section 82, Registration Act and Section 36, Police Act. If
therefore we read Section 40 in conjunction with the relevant
penal sections of the special or local Acts, the following facts
will have to be deduced; (1) that all acts or omissions in
contravention of special or local Acts which are punishable
under the said Acts, fall under the definition of "offences" in
the Penal Code; (2) that all abetments of offences which are
offences under the special or local Acts and are punishable
under the said Acts, also fall under the definition of
"offences" in the Penal Code.
12. In this connexion, Section 40, I.P.C. should be read in
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conjunction with Sections 2 and 5. Section 2 expressly
provides that every person shall be liable to punishment
under this Code and not otherwise for every act or omission
contrary to the provisions thereof of which he shall be guilty,
etc The effect of Section 5 is to qualify the general repeal
indicated in Section 2, by expressly declaring that offences
defined and provided for by special and local laws continue
to be offences and are punishable as such. Section 5 clearly
declares that the Penal Code is not intended to repeal, vary,
suspend or affect any of the provisions of any special or local
law. The one enactment has not the effect of repealing the
other. The two co-exist without conflict. In order to leave no
doubt on this point, the law on the subject has been declared
by the express provision of Section 26, General Clauses Act,
which provides that where an act or omission constitutes an
offence under two or more enactments, then the offender
shall "be liable to be prosecuted and punished under either or
any of those enactments, but shall not be liable to be
punished twice for the same offence. It is clear therefore that
where an act is punishable under a special law and also
under a general statute, the offender could be proceeded
with under either or both, but could not be punished twice
for the same act or omission which constituted the offence.
Where there is nothing in the special Act to exclude the
operation of the general criminal law, it cannot be inferred
that there was an intention on the part of the legislature to
exclude it. We accept the following statement of law in
Halsbury's Laws of England (Vol. 27, p. 168):
"The general law of the country is cot altered by special
legislation made without particular reference to it,
though a statute passed for a particular purpose must
so far as that purpose extends override general
enactments."
13. It was so held by the Madras High Court so far back as
[1876] 1 Mad. 55:
"The ordinary criminal law is not excluded by Regn. 7
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of 1817 or of Act 20 of 1860 (vide Section 20). The
permission of the Board of Revenue or of the
Committees is required only for the procedure
prescribed in the special Acts, and these special
provisions cannot be taken out of the Acts and applied
as a restriction to the ordinary operation of the criminal
law."
14. In The Queen v. Hussan Ali [1873] 5 N.W.P. 49 it was
held by Turner, J., that on the same facts the conviction and
sentence under Section 27, Cattle Trespass Act (Act 1 of
1871), and Section 169, I P.C. was illegal. The conviction and
sentence under Section 27 were quashed, but the conviction
under Section 169 was maintained but the sentence was
reduced.
15. In The Queen v. Ramachandrappa [1883] 6 Mad. 249 it
was held that the provisions of the Penal Code were not in
conflict with those of the special law, and effect might
therefore be given to both. It was observed in passing that in
ordinary cases where there were no aggravating
circumstances the Village Munsif or civil Court would act
discreetly in employing the special powers conferred on it
under Section 15(6) and Section 16(3), Regn. 4 of 1816, but
if a charge was instituted in a criminal Court under the Penal
Code, it must be dealt with by that Court. In Kuloda Prasad
Mozurndar v. Emperor [1907] 11 C.W.N. 100 a Bench of the
Calcutta High Court took much the same, view as was taken
in the last mentioned case that ordinarily it was desirable
that when an act or omission was made penal by two Acts,
one general and the other special, the sentence should be
passed under the special Act. The learned Judges referred to
the rule quoted by Lord Esher in Lee v. Danger [1892] 2 Q.B.
337 (at p. 348):
"If one statute made the doing of an act felonious and a
subsequent Act makes it only penal, the latter is
considered as the virtual repeal of the former."
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16. After quoting this passage they made the following
observation relating to this rule:
"We are not however disposed now to lay down
broadly in this country that in every case a special
penal law repeals by implication a previously existing
general law relating to an offence of the same nature,
and in this case it is not necessary for us to do so. If we
were to do so, we might infringe the rule of
interpretation in Section 26, General Clauses Act. We
are not also disposed to accept Mr. Roy's contention
that the penal provisions of the Railways Act are self-
contained and the punishment for acts and omissions
regarding a railway administration in India must be
inflicted under this Act only. The penal provisions in
the Act are not obviously exhaustive and there is
nothing in the Act itself or any other enactment in force
in India which excludes the operation of the general
laws in force as to offences which are not punishable
under the Act."
17. We are entirely in accord with the view set out above.
18. Our attention was called to the legal maxim referred to in
the judgment of the Chief Court and to a number of English
authorities which have been dealt with in the judgment of
Das, J., in Emperor v. Abdul Hamid A.I.R. 1923 Pat. 1. We
may mention at once that we consider that very, different
conditions prevail in the two countries. Here, in this country,
where we have got definite statutes, we have to follow the
same. The rules of the Common law of England or the legal
maxims embodying certain judicial principles however
wholesome they may be, cannot be engrafted upon the Penal
Code. In order to consider whether or not the offences,
referred to in Section 9, Salt Act, are, upon the fulfilment of
certain conditions, offences under Section 117, I.P.C., we
have to consider Section 9, Salt Act and read the same in
conjunction with Sections 2, 5, 40 and 117, I.P.C.
19. Considerable emphasis has been laid upon the fact that
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acts or omissions which amount to a criminal offence under
the Salt Act have not been incorporated into the body of the
Penal Code as separate or distinct offences. We agree that it
is so, but we are clearly of opinion that this makes no
difference. It would have made the Penal Code extremely
cumbrous if the offences under the various special and local
Acts were included as separate offences under the Penal Code
and punishments separately provided form them in the said
Code. To avoid repetition, provisions have been made in the
Penal Code with reference to offence generally and distinct
punishment has been provided for them in Sections 109 to
117, I.P.C.
* * *
21. Act 12 of 1882 is not a self-contained Act. The offences
enumerated therein are not exhaustive. The number of
offences under the Salt Act becomes enlarged having
reference to the provision of Section 40 read with Sections 2
and 5 of the Code which we have already referred to. The
offences mentioned in Section 9, Act 12 of 1882, were not
new offences. They were offenses under the Salt Act of 1843.
When the Penal Code was amended in 1870, the ambit of
Section 117 became enlarged so as to include within its scope
the offences under Section 9, Salt Act. The result was that
where an offence under Section 9(a) by the public generally
or by a number of persons exceeding ten was abetted, it
satisfied all the conditions of an offence under S. 117, I.P.C.
* * *
29. Upon a consideration of the texts of the various statutes
before us and the authorities dealing with the same, we
unhesitatingly come to the conclusion that a person guilty of
abetment of an offence under Section 9(a), Salt Act, may-be
convicted and sentenced under Section 117, I.P.C. where it is
proved that the act amounted to an abetment of the
commission of an offend by the public generally or by any
number or class of persons exceeding ten. We hold therefore
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that Joti Prasad Gupta has been properly convicted and
sentenced under Section 117, I.P.C."
[21] Thus, if the act is an offence under two different
statutes wherein a mode of inquiry, investigation and trial are
distinctly different, in that event, the subsequent and / or second
F.I.R. cannot be said to be violative of Article 20(2) of the
Constitution of India. When two Courts are vested with the power
to try the offences under the two different Acts, both the offences
are said to be independent to each other and has to be tried by the
manner in which it is prescribed under the statute and thereby,
this Court, while exercising powers under Section 482 of the
Cr.P.C., cannot give any such direction which is contrary to the law.
The inherent powers of this Court under Section 482 of the Cr.P.C.
is to secure the ends of justice.
[22] At this stage, I may refer to and rely upon the decision
of the Hon'ble Apex Court in the case of the State of Bombay vs. S.
L. Apte reported in AIR 1961 Supreme Court 578, wherein the
Bench having strength of four Judges had an occasion to decide the
issue of double jeopardy with regard to the offence committed
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under Section 409 of the Indian Penal Code and under Section 105
of the Indian Insurance Act. In the said decision, the facts of the
case were that two accused persons holding key post in an
Insurance Company found to have withdrawn approximately
Rs.95,000/- , for which, no proper account of legitimate expenses
of the company was furnished. Thus, both the accused persons
prosecuted under Section 409 of the Indian Penal Code and also for
the offence under Section 105 of the Indian Insurance Act. The
learned Magistrate Court convicted and sentenced both the accused
persons for both the offences with which they were charged. The
accused therein, being aggrieved thereof, filed the appeal to the
Court of Sessions Judge, Poona and the learned Sessions Judge, in
its order, while confirming the conviction and sentence of the
accused therein under Section 409 of the Indian Penal Code, set
aside their conviction under Section 105 of the Indian Insurance
Act. The learned Sessions Judge was of the opinion that proper
sanction under Section 107 to prosecute under Section 105 of the
Indian Insurance Act was not obtained. Subsequently, the
Insurance Company obtained sanction of the Advocate General of
the Bombay under Section 107 of the Indian Insurance Act and
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filed a complaint in the Court of Magistrate, Poona against the two
accused persons therein under Section 105 of the Indian Insurance
Act. Upon receipt of the process, both the accused persons have
appeared and filed an application praying, inter alia, that the
complaint against them may be dismissed as being barred by
Section 403(1) of the Cr.P.C., by reason of their previous conviction
by the Magistrate for the same offence under the Insurance Act and
their acquittal in respect thereof by the Sessions Judge. However,
the learned Magistrate overruled the plea on the ground that the
acquittal of the accused persons was not on the merits of the case,
but for lack of sanction under Section 107 of the Indian Insurance
Act. The trial then was proceeded and the evidence was led.
However, the learned Magistrate acquitted the accused persons on
the ground that Article 20(2) of the Constitution of India and
Section 26 of the General Clauses Act. The State of Bombay, being
aggrieved thereof, approached the High Court. However, the
appeal was dismissed by the High Court. With a grant of certificate
and on that strength, the appeal was preferred by the State of
Bombay before the Hon'ble Apex Court.
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[22.1] In the aforesaid facts and circumstances, the
Hon'ble Apex Court, after having considered the provisions of
Article 20(2) of the Constitution of India, Section 26 of the General
Clauses Act and Section 105 of the Indian Insurance Act, held thus
as under:
"9. Turning to the main points urged before us, we may
premise the discussion by stating that it was not disputed
before us by learned Counsel for the State, as it was not
disputed before the learned Judges of the High Court, that
the allegations to be found in the original complaint in
Criminal Case 82 of 1953 on which the conviction under S.
409 of the Indian Penal Code was obtained were similar to
the allegations to be found in the complaint under S. 105 of
the Indian Insurance Act. It should, however, be mentioned
that there was not any complete identity in the statement of
facts which set out the acts and omissions on the part of the
respondents which were alleged to constitute the two
offences - S. 409 of the Indian Penal Code and S .105 of the
Insurance Act. For instance, in the complaint which has given
rise to this appeal, the crucial paragraphs detailing the
allegations are 12 and 13 of the complaint which run:
"12. The company submits that the accused has thus
wrongfully obtained possession of Rs. 95,000 or having
that property in his possession wrongfully withheld it
or wilfully applied it to purposes other than those
expressed or authorised by the Insurance Act, 1938,
and committed an offence on the 9th August, 1952,
under Section of the Insurance Act, 1938."
"13. The company through their Solicitors called upon
the accused to explain his conduct within7 days from
the receipt of the letter. The accused has failed and
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neglected to reply to the said letters."
10. It is obvious that on these allegations alone the offence
of criminal breach of trust could not be established as they
lack any reference to any entrustment or to the dishonest
intent which are the main ingredients of the offence of
criminal breach of trust. But to this point about the difference
in the ingredients of the two offences we shall revert a little
later.
11. Even assuming that the allegations to be found in the
two complaints were identical, the question, however,
remains whether to attract the ban imposed by either Art.
20(2) of the Constitution or s. 26 of the General Clauses Act
on a second punishment, it is sufficient that the allegations in
the two complaints are substantially the same or whether it is
necessary further that the ingredients which constitute the
two offences should be identical.
12. We shall first take up for consideration Art. 20(2) of
the Constitution whose terms we shall repeat:
"20. (2) No person shall be prosecuted and punished
for the same offence more than once."
13. To operate as a bar the second prosecution and the
consequential punishment thereunder, must be for "the same
offence". The crucial requirement therefore for attracting the
Article is that the offences are the same, i.e., they should be
identical. If, however, the two offences are distinct, then
notwithstanding that the allegations of facts in the two
complaints might be substantially similar, the benefit of the
ban cannot be invoked. It is, therefore, necessary to analyse
and compare not the allegations in the two complaints but
the ingredients of the two offences and see whether their
identity is made out. It would be seen from a comparison of
S. 105 of the Insurance Act and S. 405 of Indian Penal Code
(S. 409 of the Indian Penal Code being only an aggravated
form of the same offence) that though some of the necessary
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ingredients are common they differ in the following:
(1) Whereas under S. 405 of the Indian Penal Code the
accused must be "entrusted" with property or with
"dominion over that property", under S. 105 of the
Insurance Act the entrustment or dominion over
property is unnecessary it is sufficient if the manager,
director, etc. "obtains possession" of the property.
(2) The offence of criminal breach of trust (S. 405 of
the Indian Penal Code) is not committed unless the act
of misappropriation or conversion or "the disposition in
violation of the law or contract", is done with a
dishonest intention, but S. 105 of the Insurance Act
postulates no intention and punishes as an offence the
mere withholding of the property-whatever be the
intent with which the same is done, and the act of
application of the property of an insurer to purposes
other than those authorised by the Act is similarly
without reference to any intent with which such
application or misapplication is made. In these
circumstances it does not seem possible to say that the
offence of criminal breach of trust under the Indian
Penal Code is the "same offence" for which the
respondents were prosecuted on the complaint of the
company charging them with an offence under S. 105
of the Insurance Act.
14. This aspect of the matter based on the two offences
being distinct in their ingredients, content and scope was not
presented to the learned Judges of the High Court, possibly
because the decisions of this Court construing and explaining
the scope of Art. 20(2) were rendered later. In Om Prakash
Gupta v. State of U.P., 1957 SCR 423, the accused, a clerk of
a municipality had been convicted of an offence under S. 409
of the Indian Penal Code for having misappropriated sums of
money received by him in his capacity as a servant of the
local authority and the conviction had been affirmed on
appeal, by the Sessions Judge and in revision by the High
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Court. The plea raised by the accused before this Court, in
which the matter was brought by an appeal with special
leave, was that S. 409 of the Indian Penal Code had been
repealed by implication by the enactment of sub-sections (1)
(c) and (2) of S. 5 of the Prevention of Corruption Act
because the latter dealt with an offence of substantially the
same type. This Court repelled that contention. It analysed
the ingredients of the two offences and after pointing out the
difference in the crucial elements which constituted the
offences under the two provisions, held that there was no
repeal of S. 409 of the 'Indian Penal Code implied by the
constitution of a new offence under the terms of the
Prevention of Corruption Act. It was the application of this
decision and the ratio underlying it in the context of Art.
20(2) of the Constitution that is of relevance to the present
appeal. The occasion for this arose in State of Madhya
Pradesh v. Veereshwar Rao, 1957 SCR 868. The respondent
was a tax-collector under a municipality and was prosecuted
for offences among others under S. 409 of the Indian Penal
Code and S. 5(2) of the Prevention of Corruption Act for
misappropriation of sums entrusted to him as such tax-
collector. By virtue of the provision contained in S. 7 of the
Criminal Law Amendment Act, XLVI of 1952, the case was
transferred to a Special Judge who was appointed by the
State Government after the prosecution was commenced
before a Magistrate. The Special Judge found the accused
guilty of the offence under S. 409 of the Indian Penal Code
and convicted him to three years' rigorous imprisonment but
as regards the charge under S. 5(2) of the Prevention of
Corruption Act, he acquitted the accused on the ground of
certain procedural non-compliance with the rules as to
investigation prescribed by the latter enactment. The
respondent appealed to the High Court against this
conviction and sentence under S. 409 of the Indian Penal
Code and there urged that by reason of his acquittal in
respect of the offence under S. 5(2) of the Prevention of
Corruption Act, his conviction under S. 409 of the Indian,
Penal Code could not also be maintained, the same being
barred by Art. 20(2) of the Constitution. The High Court of
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Madhya Bharat accepted this argument and allowed the
appeal and the State challenged the correctness of this
decision by an appeal to this Court. Allowing the appeal of
the State, Govinda Menon, J., delivering the judgment of the
Court observed:
"This Court has recently held in Om Prakash Gupta v.
The State of U.P. 1957 SCR 423 that the offence of
criminal misconduct punishable under S. 5(2) of the
Prevention of Corruption Act, II of 1947, is not
identical in essence, import and content with an
offence under S. 409 of the Indian Penal Code In view
of the above pronouncement, the view taken by the
learned Judge of the, High Court that the two offences
are one and the same, is wrong, and if that is so, there
can be no objection to a trial and conviction under S.
409 of the Indian Penal Code, even if the respondent
has been acquitted of an offence under S. 5(2) of the
Prevention of Corruption Act, II of 1947.... The High
Court also relied on Art. 20 of the Constitution for the
order of acquittal but that Article cannot apply because
the respondent was not prosecuted after he had already
been tried and acquitted for the same offence in an
earlier trial and, therefore, the well-known maxim
"Nemo debet bis vexari, si constat curiae quod sit pro
una et eadem causa" (No man shall be twice punished,
if it appears to the court that it is for one and the same
cause) embodied in Art. 20 cannot apply."
Before leaving this part of the case we might also point
out that a similar view of the scope of the rule as to double-
jeopardy has always been taken by the Courts in America.
The words of the Vth Amendment where this rule is to be
found in the American Constitution are:
"Nor shall any person be subject, for the same offence,
to be twice put in jeopardy of life or limb." and it will
be noticed that there as well, the ban is confined to a
second prosecution and punishment for the same
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offence. Willoughby after referring to the words quoted
in the Fifth Amendment says:
"Cases may occur in which the same act ma y render
the actor guilty of two distinct offences; In such cases
the accused cannot plead the trial and acquittal, or the
conviction and punishment for one offence in bar to a
conviction for the other"(1). In Albrecht v. United
States, (1928) 273 U. S. 1:71 Law Ed 505, Brandeis, J.,
speaking for a unanimous Court said:
"There is a claim of violation of the Vth Amendment by
the imposition of double punishment. This contention
rests upon the following facts. Of the nine counts in the
information four charged illegal possession of liquor,
four illegal sale and one maintaining a common
nuisance. The contention is that there was double
punishment because the liquor which the defendants
were convicted for having sold is the same that they
were convicted for having possessed. But possessing
and selling are distinct offences. One may obviously
possess without selling; and one may sell and cause to
be delivered a thing of which he has never had
possession; or one may have possession and later sell,
as appears to have been done in this case. The fact that
the person sells the liquor which he possessed does not
render the possession and the sale necessarily a single
offence. There is nothing in the Constitution which
prevents Congress from punishing separately each step
leading to the consummation of a transaction which it
has power to prohibit and punishing also the completed
transaction."
15. If, therefore, the offences were distinct there is no
question of the rule as to double-jeopardy as embodied in
Art. 20(2) of the Constitution being applicable.
16. The next point to be considered is as regards the scope
of S. 26 of the General Clauses Act. Though S. 26 in its
opening words refers to "the act or omission constituting an
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offence under two or more enactments", the emphasis is not
on the facts alleged in the two complaints but rather on the
ingredients which constitute the two offences with which a
person is charged. This is made clear by the concluding
portion of the section which refers to "shall not be liable to be
punished twice for the same offence,". If the offences are not
the same but are distinct, the ban imposed by this provision
also cannot be invoked. It therefore follows that in the
present case as the respondents are not being sought to be
punished for "the same offence" twice but for two distinct
offences constituted or made up of different ingredients the
bar of the provision is inapplicable."
[23] In the instant case, although the accused and the
applicants are the same in both the F.I.Rs. even the disputed land is
also the same, however, the offence of the land grabbing of the
second F.I.R. is punishable under the Special Act i.e. the Land
Grabbing Act, for which, as discussed hereinabove, the Special
Court has been constituted empowering the said Court to adopt its
own procedure by further vesting the power to grant relief under
the civil law as well as the criminal law. Under the Special Act,
even the method of lodgment of F.I.R. and the investigation thereof
is also prescribed to a Designated Officer, thus, the offence
committed under the Special Act is quite different in all senses with
regard to investigation, inquiry and trial as compared to the
General Criminal Law. Thus, the basic concept of criminal
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proceedings under the General Criminal Law and the one under the
Land Grabbing Act is materially different. The Special Court
constituted under the Land Grabbing Act is meant only to try the
offence under the land grabbing. The offences those are alleged in
the first F.I.R. under the Indian Penal Code is to be tried as per the
provisions of Section 4(1) of the Cr.P.C. and is triable by the
learned Judicial Magistrate First Class. Under the circumstances, in
my considered opinion, it is not possible for this Court to club the
investigation of the second F.I.R. as a supplementary chargesheet
with the first F.I.R. I say so because, as stated hereinabove, both the
offences falling under the different statutes and thereby, both the
offences shall have to be investigated and tried as per the
procedure prescribed under the respective Act. If the offences
committed under the second F.I.R. i.e. the Land Grabbing Act is
directed to be clubbed with the first F.I.R. of the Indian Penal Code,
it would be amounting to conferring power of Special Court upon
the Magistrate Court to try the offence under the Special Act which
is contrary to the provisions of the Land Grabbing Act. This Court
cannot give any such direction which is otherwise contrary to the
law. The decision of the learned Magistrate, if the two offences are
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clubbed and adjudicated together, would be without jurisdiction
being contrary to the provisions of Section 4(2) of the Cr.P.C. and
the provisions of the Land Grabbing Act. In my considered opinion,
therefore, offences falling under the different statutes cannot be
said to be one and / or the same and thereby, cannot be clubbed
together in exercise of powers under Section 482 of the Cr.P.C. The
accused cannot be allowed to take benefit under the principle of
"double jeopardy". The shelter of the provisions of Article 20(2) of
the Constitution of India cannot be extended to the accused if the
offence has been committed under the two different statutes
although on an overlapping set of allegations between the same
parties.
[24] The Hon'ble Apex Court in the case of Amitbhai
Anilchandra Shah (supra), has, in no uncertain terms, held that
administering criminal justice is a two-end process, where guarding
the ensured rights of the accused under the Constitution is as
imperative as ensuring justice to the victim. The Hon'ble Apex
Court has further held that it is definitely a daunting task. It is
further held that responsibility vested on the Court of law to protect
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and shield the rights of both. Keeping in mind the said
observations, in the instant case, if the second F.I.R. is quashed
under the Land Grabbing Act and / or investigation is directed to
be clubbed with the first F.I.R., in that event, a serious prejudice
will be caused to the complainant. I say so because, under the Land
Grabbing Act, the Special Court has been vested with the special
powers to decide the case on criminal as well as civil side and is
also empowered to restore the possession of the land. Thus, the
right has been created in favour of the complainant not only to seek
offender to be punished, but to get back the possession of the land.
Therefore, if the second F.I.R. is quashed, the right of the
complainant, under the Land Grabbing Act, would completely
frustrate and if the investigation is clubbed with the first F.I.R., in
that event, the Court dealing with the offence of the first F.I.R.
under the Indian Penal Code will not be competent to try the case
for the offence under the Land Grabbing Act. Thus, the statutory
right of the complainant would be frustrated. Accordingly, this
Court, while exercising the powers under Section 482 of the
Cr.P.C., would not be in a position to pass any such order whereby
the right created under the Special statute is frustrated.
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[25] So far as the decision relied upon by the learned
counsel appearing for the applicants in the case of Tarak Dash
Mukherjee (supra) is concerned, the Hon'ble Apex Court had an
occasion to deal with two F.I.Rs. between the same parties in
respect of the same set of facts and the allegations, more
particularly, under one common Act i.e. the Indian Penal Code. The
facts of the present case and the facts of aforesaid decision are
materially different inasmuch as in the instant case, although the
parties and the allegations are the same, but gives rise of the
offence under the different statutes i.e. one under the Indian Penal
Code and another under the Special Act i.e. the Gujarat Land
Grabbing Act. Thus, in my considered opinion, there is a material
change in facts and hence, the ratio in the case of Tarak Dash
Mukherjee (supra) is not applicable to the facts of the present case.
[26] In view of the foregoing discussion, in my considered
opinion, the impugned F.I.R. for the offence under the Land
Grabbing Act cannot be said to be second and / or subsequent
F.I.R. with reference to the first F.I.R. which is under the Indian
Penal Code. The offence alleged under both the Acts are materially
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different, not only that, but the manner of investigation, inquiry
and trial of both the offences are also independent to each other
and thus, it cannot be said to be the same and / or one offence and
therefore, clubbing of the second F.I.R. for the offence under the
Land Grabbing Act with the first F.I.R. for the offence under the
Indian Penal Code is also impermissible in view of the provisions of
Section 4(2) of the Cr.P.C. read with Sections 7, 9, 11 and 12 of the
Gujarat Land Grabbing Act.
I answer all the questions accordingly.
[27] For the foregoing reasons, present applications are
bereft of any merit and thereby, deserve to be dismissed and are,
accordingly, dismissed. Interim relief, if any, stands vacated
forthwith. Rule is discharged.
(NIRAL R. MEHTA,J)
CHANDRESH
