Kerala High Court
Gracy Jacob vs State Of Kerala on 1 December, 2023
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945
CRL.REV.PET NO. 355 OF 2019
AGAINST THE ORDER DATED 04.12.2018 IN CMP NO.6734 OF 2017
IN CC 2339/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
HOSDRUG
CRIME NO.91/2015 OF HOSDURG POLICE STATION, KASARGOD
REVISION PETITIONER/4TH PETITIONER/4TH ACCUSED:
M.MOHAMMED KUNHI
AGED 57 YEARS
S/O.HASSANKUNHI, R/AT MURIYANKODE, CHITHARI
VILLAGE, KASARAGOD DISTRICT.
BY ADVS.
SURESH KUMAR KODOTH
SRI.K.P.ANTONY BINU
RESPONDENT/RESPONDENT-STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, 682031.
2 V.HASHIM
AGED 39 YEARS
S/O.ABOOBACKER PK, FLAT NO.7, KUWAIT TOWER, TB
ROAD, HOSDURG, KANHANGAD PO- 671121.
R1 BY SMT.SEENA C., PUBLIC PROSECUTOR
R2 BY ADV JAWAHAR JOSE
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 15.11.2023, ALONG WITH
Crl.Rev.Pet.379/2019, THE COURT ON 01.12.2023 DELIVERED
THE FOLLOWING:
2
Crl.R.P.Nos.355 and 379 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA,
1945
CRL.REV.PET NO. 379 OF 2019
AGAINST THE ORDER DATED 04.12.2018 IN CMP NO.6734 OF 2017
IN CC 2339/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
HOSDRUG
CRIME NO.865/2012 OF HOSDURG POLICE STATION, KASARGOD
REVISION PETITIONERS/ACCUSED NO.1 & 2:
1 GRACY JACOB
AGED 53 YEARS
W/O. STEPHEN JOSEPH, MURIKKUNNEL HOUSE, RAILWAY
STATION CROSS ROAD, HOSDURG VILLAGE.
2 STEPHEN JOSEPH
AGED 58 YEARS,
S/O. JOSEPH, MURIKKUNNEL HOUSE, RAILWAY STATION
CROSS ROAD, HOSDURG VILLAGE.
BY ADVS.
P.C.NOUSHAD
C.K.SREEDHARAN
E.A.HARIS
RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
3
Crl.R.P.Nos.355 and 379 of 2019
2 V.HASHIM*
AGED 40 YEARS, FLAT NO 7,KUWAITH
TOWER,T.B.ROAD,HOSDURG,HOSDURG
VILLAGE,KANHANGAD .P.O,GENUINE
ELECTRONICS,PUTHIYAKOTTA,KASRAGOD-671315.
*IS IMPLEADED AS ADDNL R2 AS PER ORDER DATED
5/11/2019
R1 BY SMT.SEENA C., PUBLIC PROSECUTOR
R2 BY ADV JAWAHAR JOSE
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 15.11.2023, ALONG WITH
Crl.Rev.Pet.355/2019, THE COURT ON 01.12.2023 DELIVERED THE
FOLLOWING:
4
Crl.R.P.Nos.355 and 379 of 2019
P.G. AJITHKUMAR, J. C.R.
---------------------------------------------------
Crl.R.P.Nos.355 and 379 of 2019
----------------------------------------------------
Dated this the 1st day of December, 2023
ORDER
Sri.U.Raghavan, son of Kannan, Kunnummel, a retired
teacher expired on 28.08.2003. He had 22 cents of land
comprised in resurvey No. 291/3-C of Balla Village. Sale Deed
No.359 of 2007 alienating the said property was executed on
05.07.2007 in the name of Sri.U.Raghavan. It was in favour of
Smt.Gracy Jacob. Her husband is a witness in that document.
Subsequently, the said property was alienated in favour of
Sri.Muhammed Kunhi. He in turn executed sale deed No.4673 of
2009 on 30.10.2009 alienating the said 22 cents of land in
favour of Sri.V.Hashim. Alleging that Sri.Mohammed Kunhi,
knowing fully that the property belonging to Sri.U.Raghavan was
got transferred by forging a sale deed by impersonation, he had
executed sale deed in favour of Sri.V.Hashim and received an
amount of Rs.22 lakhs. With the said allegations, Sri.V.Hashim
filed a complaint before of the Judicial Magistrate of the First
Crl.R.P.Nos.355 and 379 of 2019
Class-I, Hosdurg alleging offences punishable under Sections
419, 420, 465, 467, 468, 471 and 120B read with Section 34 of
the Indian Penal Code, 1860 (IPC). The complaint was
forwarded to the Hosdurg Police Station, which followed an
investigation and filing of the final report against all the four
persons aforementioned. On taking cognizance, all the four
accused were summoned. The accused entered appearance and
filed C.M.P.No.6734 of 2017 seeking discharge. That petition
was dismissed by the court below as per the order dated
04.11.2018. The said order is under challenge in these revision
petitions.
2. The 4th accused filed Crl.R.P.No.355 of 2019. Accused
Nos.1 and 2 filed Crl.R.P.No.379 of 2019. Accused No.3 is no
more.
3. Heard the respective counsel for the petitioners,
learned Public Prosecutor and the learned counsel for the 2 nd
respondent/defacto complainant.
4. The 1st accused is Smt. Gracy Jacob in favour of whom
the first sale deed namely, document No.359/2007 was executed.
Crl.R.P.Nos.355 and 379 of 2019
Her husband, who attested the sale deed and identified the
executant who allegedly impersonated late U.Raghavan, before
the registering authority is the 2 nd accused. The scribe of the
document is the 3rd accused. The 4th accused is Sri.Mohammed
Kunhi, who purchased the property from the 1 st accused and later
alienated in favour of the 2nd Respondent Complainant.
5. On the basis of the final report, case was taken on
file as C.C.No.2260 of 2016. The first witness in the case is the
2nd respondent. The second witness is one Sethunath. He is son
of late U.Raghavan. Sri.Sethunath earlier filed a complaint
before the court below with the allegation that the accused
therein forged document No.359 of 2007 impersonating his
father. From his statement in police report, it is seen that on
getting information from the village officer when he approached
to remit tax for the property in question he came to know that
some other persons approached that office for the payment of
tax for the same property, and in his enquiry, he knew creation
of document No.359 of 2007 falsely. His further statement is
that he filed a complaint before the Magistrate which was sent
Crl.R.P.Nos.355 and 379 of 2019
for investigation and simultaneously he filed O.S.No.126 of 2012
before the Sub Court, Hosdurg for getting the said document set
aside. The crime registered on the basis of his complaint, crime
No.865 of 2012 was referred stating it to be 'civil nature'. It was
in the meantime the 2nd respondent filed another complaint
before the court below, which ensued an investigation and filing
of the present final report.
6. The petitioners along with the 3 rd accused filed
C.M.P.No. 6737 of 2017 seeking discharge on the ground that
having the first FIR relating to the same offences was referred,
a second FIR and the investigation are prohibited and illegal. On
that ground, the petitioners sought discharge. They contended
before the court below that the proceedings initiated on the
basis of a second F.I.R. as illegal and in that regard they placed
reliance on the decision in Mathews Mar Ivaniose v.
Dr.Thomas Mar Athanasious [2014 (4) KLT SN 107
(C.No.13), Prameswaran Nair v. Surendran [2009 (1) KLT
74] Amith Bai Anil Chandra Shah v. Central Bureau of
Investigation [2013 (2) KLT SN 65 (Case No.75) SC,
Crl.R.P.Nos.355 and 379 of 2019
Awadesh Kumar Jha Akilesh Kumar Jha v. State of Bihar
[AIR 2016 SC 373 = 2016 AIAR (Criminal) 247] and
Surender Kaushik and others v. State of Uttar Pradesh
and others [(2013) 5 SCC 148 = 2013 SCAR (Criminal)
394]. The court below considered the facts of the case in the
light of principle of law laid down in the above mentioned
decisions and held that from the materials contained in the final
report and the documents submitted therewith it could not be
said that both the FIRs. were regarding the same set of facts. It
was further observed that only if a trial is held, it could be
ascertained whether the two FIRs. were registered with respect
to the same facts. On the ground that the petitioner failed to
establish sameness of two FIRs., the court below dismissed the
petition for discharge.
7. The learned counsel appearing for accused Nos.1 and
2 submits that the basic facts constituting the offence alleged in
both the FIRS. are the same; inasmuch as the allegations are
that the property of late U.Raghavan was alienated by creating a
false document by impersonation. The only difference is that
Crl.R.P.Nos.355 and 379 of 2019
the 4th accused later executed a document in favour of the 2 nd
respondent. It is accordingly contended that there is no
difference between the offences involved in both the cases. It is
further submitted that when a crime was registered and
investigated already, the second complaint before the police can
only be statement under section 161 of the Code and for that
reason also the second F.I.R. and investigation became illegal.
On that ground, it is contended that proceedings in C.C.No.2339
of 2016 is illegal and a futile exercise, and the charge in the
case would only be groundless.
8. The court below after dismissing the petition for
discharge decided to frame a charge against all the accused.
That is the order challenged in this revision. The Apex Court in
Amit Kapoor v. Ramesh Chander and another [ (2012) 9
SCC 460] delineated the ambit and scope of the power which
the High Court can exercise under Section 397 of the Code. The
Court is vested with the power to call for and examine the
records of an inferior Court for the purposes of satisfying itself
as to the legality and regularity of any proceedings or order
Crl.R.P.Nos.355 and 379 of 2019
made in a case. The object of this provision is to set right a
patent defect or an error of jurisdiction or law. There has to be a
well-founded error and it may not be appropriate for the Court
to scrutinize the orders, which upon the face of it bears a token
of careful consideration and appear to be in accordance with
law. After referring to a slew of judgments the Apex Court held
that the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding recorded is
based on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely.
9. Therefore, the revisional jurisdiction is a very limited
one and cannot be exercised in a routine manner. The Court has to
keep in mind that the exercise of revisional jurisdiction itself should
not lead to injustice ex facie. And, where the Court is dealing with
the question as to whether the charge has been framed properly
and in accordance with law in a given case, it may be reluctant to
interfere in exercise of its revisional jurisdiction unless the case
substantially falls within the categories aforestated.
Crl.R.P.Nos.355 and 379 of 2019
10. The learned counsel for the petitioners in both the
revision petitions submit that the genesis of both the cases is
the same, and except for adding one more accused in the
second F.I.R. there is no noticeable difference in the allegations
constituting the offence. Relying on the principle laid down by
the Apex court that a second FIR in regard to the same offence
is prohibited, the learned counsel canvassed for a position that
the proceedings in CC No. 2339 of 2015 are illegal and for that
reason, the court below ought to have discharged the
petitioners.
11. In T.T Antony v. State of Kerala and others
[(2001) 6 SCC 181] the Apex court held that an FIR
postulated by Section 154 of the Code is the earliest and the
first information of a cognizable offence recorded by an officer in
charge of the police station. It sets the criminal law into motion
and marks the commencement of the investigation. An
investigation ends up with the formation of opinion under
Section 169 or 170 of the Code, as the case may be and
forwarding of a police report under Section 173. Once an F.I.R.
Crl.R.P.Nos.355 and 379 of 2019
is registered, all other information made orally or in writing,
after the commencement of the investigation will be statements
falling under Section 162 of the Code. It was accordingly held
that no such second information or statement can be treated as
an FIR, as it would be a second F.I.R. and the same cannot be in
conformity with the scheme of the Code. The principle of law
that there cannot be two F.I.R. with respect to the same incident
was reiterated by a three-Judge bench of the Apex Court in
Upkar Singh v. Ved Prakash and others [(2004) 13 SCC
292]. The Apex court following the said proposition of law in
Tarak Dash Mukharjee v. State of Uttar Pradesh and
others [2022 (2) KLD 435 (SC)] held that if multiple FIRs by
the same person against the same accused are permitted to be
registered in respect to the same set of facts and allegations, it
will result in the accused getting entangled in multiple criminal
proceedings for the same offence. Therefore registration of
multiple FIRs is nothing, but abuse of the process of law. It was
further held that the act of registration of such subsequent FIR
on the same set of facts and allegations at the instance of the
Crl.R.P.Nos.355 and 379 of 2019
same informant will not stand the scrutiny of Articles 21 and 22
of the Constitution of India, and therefore the proceedings
pursuant to the second FIR are illegal. In view of that, it is to be
considered whether both the FIRs were registered on the same
set of facts.
12. In Upkar Singh [(2004) 13 SCC 292], the Apex
court held that the prohibition for a second FIR does not cover a
second FIR, allegations of which are different although relating
to the same incident. It was held that the concept of sameness
has been given a restricted meaning in the above context.
Reiterating the said principle the Apex Court in P.Sreekumar v.
State of Kerala [(2018) 4 SCC 579] held that it is for the
court to decide whether the allegations in two FIRs regarding
the same incident, but laid by two different persons are same
and comes within the mischief of the bar to a second FIR.
13. The principle of sameness was dialated by the Apex
Court in Surender Kaushik and others v. State of Uttar
Pradesh and others [(2013) 5 SCC 148]. It was held,-
"24. From the aforesaid decisions, it is quite luminous that
Crl.R.P.Nos.355 and 379 of 2019
the lodgment of two FIRs is not permissible in respect of
one and the same incident. The concept of sameness has
been given a restricted meaning. It does not encompass
filing of a counter FIR relating to the same or connected
cognizable offence. What is prohibited is any further
complaint by the same complainant and others against the
same accused subsequent to the registration of the case
under the Code, for an investigation in that regard would
have already commenced and allowing registration of
further complaint would amount to an improvement of the
facts mentioned in the original complaint. As is further
made clear by the three-Judge Bench in Upkar Singh
(supra), the prohibition does not cover the allegations
made by the accused in the first FIR alleging a different
version of the same incident. Thus, rival versions in
respect of the same incident do take different shapes and
in that event, lodgment of two FIRs is permissible.
14. In Babubhai and others v. State of Gujarat and
others [(2010) 12 SCC 254], the Apex Court held that it is
quite possible that more than one piece of information be given
to the Police Officer in- charge of the Police Station in respect of
the same incident involving one or more than one cognizable
offences. In such a case, he need not enter each piece of
information in the Diary. All other information given orally or in
Crl.R.P.Nos.355 and 379 of 2019
writing after the commencement of the investigation into the
facts mentioned in the First Information Report will be
statements falling under Section 162 of the Code. In such a
case the court has to examine the facts and circumstances
giving rise to both the FIRs and the test of sameness is to be
applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are in regard to
the incidents which are two or more parts of the same
transaction. If the answer is affirmative, the second FIR is liable
to be quashed.
15. The law laid down in Babubhai [(2010) 12 SCC
254], was explained and reiterated by the Apex Court in Anju
Chaudhary v. State of U.P. And another [(2013) 6 SCC
384].
16. As stated, if both the FIRs are with the same set of
allegations and the offences constituting from the allegations
are the same, the second FIR and the proceedings following
such second FIR are illegal. If there is no sameness, if the
nature of allegations and the facts involved and also the persons
Crl.R.P.Nos.355 and 379 of 2019
aggrieved are different, the bar would not be applied. In the
instant case, from the statement of the second witness
Sethunath in C.C.No.2339 of 2015, it is seen that the allegations
in his complaint based on which the first FIR was registered was
essentially regarding creation of document dated 27.01.2007
impersonating late U.Raghavan. It was in the name of
Smt.Gracy Jacob. Subsequently the 4th accused who obtained
property from Smt.Gracy Jacob alienated the property in
question in favour of the 2nd respondent. The allegation of the
2nd respondent in his complaint are the fraudulent inducement
by the 4th accused in the matter of execution of sale deed dated
30.10.2009 and receipt of Rs.22 lakh as sale consideration from
the 2nd respondent. Conspiracy hatched by accused Nos. 1 to 4
for the purpose of executing sale deed in favour of the 2 nd
respondent are also essential parts of the allegations to
constitute the offences alleged therein. In that view of the
matter, allegations in the two F.I.Rs. have substantial difference.
The complainants are different. All the accused are not common.
In such circumstances, it cannot be said that both the FIRs are
Crl.R.P.Nos.355 and 379 of 2019
regarding the same offence and based on the same set of facts.
Therefore the contention of the learned counsel for the
petitioners that the charge in C.C.No.2339 of 2015 would only
be groundless for the reason that it is based on a second FIR
regarding the same incident is untenable.
17. The learned counsel for the 2nd respondent would
submit that only if the first complaint has been dismissed on
merits, there can be a bar for the 2 nd complaint and the
proceedings thereon would become illegal. He avails assistance
in this regard of the principle of law laid down by the Apex Court
in Mahesh Chand v. B.Janardhan Reddy and another
[(2003) 1 SCC 734]. Here, the first crime was registered on
the basis of the complaint of Sri.Sethunath. The second crime
was registered on the basis of a complaint filed by the 2 nd
respondent Both were filed before the court and forwarded for
investigation invoking the provision of Section 156(3) of the
code. When FIRs were registered based on those complaints
and final report after investigation were filed, the character of
the proceedings changed and both became cases arose on
Crl.R.P.Nos.355 and 379 of 2019
police reports. Therefore, the plea of the learned counsel for the
2nd respondent that there is no bar to the present case since the
first complaint was not decided on merits does not assume
importance in this case.
18. Of course, the first crime was referred stating that
the dispute was of civil nature. That was at a time when the suit
filed by Sri. Sethunath was pending. A full-fledged investigation
was held only in the second case and the final report charging
the petitioners with the offences mentioned herein before, was
later filed. In the above circumstances, this case does not
attract the bar of the second FIR. These revision petitions are
devoid of merits.
Accordingly, these revision petitions are dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
Crl.R.P.Nos.355 and 379 of 2019
APPENDIX OF CRL.REV.PET 355/2019
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE FIR NO.91/2015 OF
HOSDURG POLICE STATION.
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT DATED
24.6.2015 FILED BY HONOURABLE POLICE
