Rajasthan High Court - Jodhpur

Udai Kumar Jain vs State Of Rajasthan (2025:Rj-Jd:4326) on 22 January, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

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                  HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                                   JODHPUR
                             S.B. Criminal Misc(Pet.) No. 238/2023

             Udai Kumar Jain S/o Shri Indermal Ji Jain, Aged About 68 Years,
             R/o 18-A Tilak Colony Sector No. 03 Hiranmagari Udaipur
                                                                               ----Petitioner
                                                Versus
             1.     State Of Rajasthan, Through Pp
             2.     Dinesh Kothari S/o Shri Surat Ram Kothari, Partner
                    Adinanth Developers Registered Address Adinath Market
                    Dholi Baori Inside Delhi Gate Udaipur
                                                                             ----Respondents


             For Petitioner(s)        :     Mr. Deepak Menaria
             For Respondent(s)        :     Mr. Narendra Gehlot, PP
                                            Mr. Sudhir Saruparia



                     HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

REPORTABLE 22/01/2025

Instant misc. petition has been filed by the petitioner for

quashing of criminal proceedings arising out of FIR No. 497/2021

registered at Police Station Pratap Nagar, District Udaipur for

offence under Sections 166, 196, 219, 420, 467, 468, 471, 120B

IPC.

Brief facts of the case are that owing to dispute between the

petitioner and the respondent no.2 regarding the business

transaction and affairs of partnership deed dated 26.09.2011,

respondent No.2 had made a complaint before the Judicial

magistrate (City North) No.1, Udaipur on 09.07.2018. The said

complaint was forwarded to the Police Station, Dhanmandi,

Udaipur and FIR No. 73/2018 was registered for offence under

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Sections 420, 467, 468, 471, 120B IPC against the petitioner and

other persons. Against the said FIR the petitioner had preferred

Misc. Petition before this Court being S.B. Criminal Misc. Petition

No. 2858/2018 in which the co-ordinate Bench of this Court had

passed an interim order in favour of the petitioner to the effect

that no coercive action shall be taken against the petitioner.

During pendency of investigation in FIR No. 73/2018 and

S.B. Criminal Misc. Petition No. 2858/2018, the respondent no.2

made another complaint against the petitioner which was

forwarded to the SHO, Police Station Pratap Nagar, Udaipur under

Section 156(3) Cr.P.C and FIR No. 497/2021 was lodged against

the petitioner.

Counsel for the petitioner argued that with regard to the

alleged partnership deed dated 26.09.2011, civil litigation is

pending before the Civil Court and having failed to get any

injunction, the respondent no.2 has been filing criminal complaints

against the petitioner and other persons, prior to lodging of FIR

No. 497/2021. It is argued that the allegations in the FIR No.

497/2021 and FIR No. 73/2018 are same, therefore, the FIR No.

497/2021 is nothing but a second FIR which is barred by law. He

placed reliance on the judgment of Hon'ble Apex Court in the case

of T.T. Antony Vs. State of Kerala reported in 2001(6) SCC 181

and Amit Anil Chand Sahu Vs. CBI reported in 2013(6) SCC 348.

The petitioner has placed reliance upon the aforesaid judgments in

support of his contention that the present FIR is nothing but a

second FIR and therefore the same should be quashed.

Learned Public Prosecutor and counsel for the respondent

no.2 vehemently argued that offences as alleged by the

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complainant are prima facie made out against the petitioner,

therefore, at this stage, the FIR is not liable to be quashed.

However, counsel for the respondent no.2 is not in a position to

dispute that the allegations in FIR No. 497/2021 of P.S. Pratap

Nagar, District Udaipur and FIR No. 73/2018 of P.S. Dhanmandi,

District Udaipur are related to same partnership deed.

I have considered the rival arguments and carefully gone

through the FIR and material on record.

From the perusal of the FIRs and material on record, it is

apparent that the allegations against the petitioner and other

accused persons are to the effect that they prepared a forged and

fabricated partnership deed in the firm Adinath Developers. Thus,

the incident in both the First Information Reports are in

connection of same transaction. There can be no straightjacket

formula for quashing or clubbing the FIR and Courts are required

to examine the facts of each case. The Court is required to see the

circumstances of a given case indicating proximity of time, unity

or proximity of case, continuity of action, commonality of purpose

of the crime to ascertain if more than one FIR can be allowed to

stand. In the opinion of this Court, there is no propriety in

conducting investigation two cases separately by different

investigating officers.

In the case of T.T. Antony vs. State of Kerala and others

Reported in (2001) 6 SCC 181, the Hon'ble Apex Court has

observed as under:

"The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know

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of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. 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 Cr.P.C. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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 F.I.R. 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 of the Cr.P.C."

In the Case of Babubhai vs. State of Gujarat & others

Reported in (2010) 12 SCC 254, the Hon'ble Supreme Court

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has observed that while applying the test of sameness, it has

been held that subsequent to registration of an FIR any further

complaint in connection with the same or connected offence

relating to the incident or incidents which are part of the same

transaction is not permissible. The relevant observations are

quoted hereunder:-

"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, 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 writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.

21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out 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. However, in case, the contrary is proved,

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where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted."

In the case of Amitbhai Anilchandra Shah vs Central

Bureau of Investigation and another reported in (2013)

6 SCC 348, the Hon'ble Supreme Court has considered the

applicability of 'consequence test' as laid down in the case of

C. Muniappan & others vs. State of Tamil Nadu Reported

in (2010) 9 SCC 567 and has held that:

"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."

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In the present case in hand, the Court is satisfied with the

sameness of the allegations in the two FIRs. In any case, the

alleged offence forming part of the second FIR arises as a

consequence of the offence alleged in the first FIR.

In the facts and circumstances of the case so also in the light

of the judicial pronouncements of Hon'ble Apex Court, no case for

quashing of criminal proceedings arising out of FIR No. 497/2021

registered at Police Station Pratap Nagar, District Udaipur is made

out. However, since there cannot be two FIRs against the same

accused in respect of the same case or cause of action and on the

same set of facts, therefore, there is no propriety in allowing