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TMI Blog2010 (8) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Penal Code, 1860 (hereinafter called as "IPC") read with Section 135 of the Bombay Police Act, 1951 (for short "BP Act") and Sections 3, 7 of Prevention of Damages of Public Property Act, 1984 (for short "1984 Act") for an incident which occurred at Village Dhedhal, wherein Mr. M.N. Pandya, Sub-Inspector of Police, Bavla Police Station has stated that while he was patrolling in Bavla Town, he received a message from H.C. Kanaiyalal, Police Station Officer, at 10.00 a.m. that some altercation/incident had taken place between the two communities at Dhedhal Cross Roads. On receiving the said information, he along with other police personnel, rushed to the place of incident, however, by that time the crowd had already dispersed. Thereafter, he received information that a clash was going on between the said two communities in Dhedhal village. Immediately, he contacted the Control Room, as well as the Deputy Superintendent of Police of Dholka, for further police support and rushed to the spot where he found about 2000-3000 persons from both the communities, all with sticks, dhariyas, swords etc., attacking each other. The police resorted to teargas shells as well as to lathi ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He saw Ganesh Jaksi of the Bharwad community of Dhedhal village having tamancha-like weapon in his hand and instigating the other persons to indulge in violence. He also saw Sanjay Chela Bharwad, Dhiru Matam Bharwad, Sura Raiji Bharwad of Dhedhal intercepting people going on the road and Karshan Chako Bharwad, Moman Natha Bharwad, Kalu Sedhu Bharwad, Kalu Hari Bharwad, Chinu Bhikhu Bharwad assaulting Vadibhai Pakhabhai and Amubhai as well as the chhakda rickshaw-wala saying that the road was not for them and thus, they should not pass through it. The complainant and Manubhai went to rescue Vadibhai. At that time, Jayantibhai Laljibhai Patel of their village and Matambhai Vadibhai Patel came on a motor cycle. They were also stopped and all the persons jumped on them and started assaulting and abusing them. He saw that Surabhai Raijibhai Bharwad had inflicted stick blows on Manubhai due to which he was injured and became unconscious. When the mob beat up Manubhai, at that time, other Bharwads from Dhedhal village had also arrived. 5. The Bharwads started beating passersby on vehicles, who had worn clothes like Koli Patels and causing injuries to them. The Bharwads made calls on mob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 and the accused who stood arrested in connection with C.R.No.I-155 of 2008 would stand arrested in connection with case C.R. No.I-154/2008. Hence, these appeals. 9. Shri R.K. Abichandani, learned senior counsel appearing for the appellant/complainant in C.R. No.I-155/2008, and Shri Tushar Mehta, learned Additional Advocate General have submitted that the High Court quashed the FIR without appreciating that there are no common factors in both the FIRs so as to indicate that both FIRs had arisen out of the same transaction. Thus, the FIRs could not be clubbed; the incident recorded in CR No. I-155/08 occurred prior in point of time and facts recorded in both the FIRs make it evident that there had been two separate incidents at two different places and for distinct offences. In CR No. I-155/08, three persons belonging to Koli Patel community had died and 26 persons of the same community were injured at the hands of Bharwads, whereas no person from the Bharwad community suffered any injury. Both the FIRs had been lodged specifying that the FIR in CR No.I-155/08 has been in respect of the incident occurred at 9.15 am while the incident involved in CR No. I-154/08 has been in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same cognizable offence or same occurrence giving rise to one or more cognizable offences. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report 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 the Investigating Officer has to file one or more reports under Section 173 Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C. In case the officer receives more than one piece of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts mentioned in the original complaint, hence, will be prohibited under section 162 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible. 15. In Rameshchandra Nandlal Parikh Vs. State of Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR. 16. In Nirmal Singh Kahlon Vs. State of Punjab & Ors. (2009) 1 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C. 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, 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. 18. The instant case is required to be examined in the light of the aforesaid settled legal propositions. If the two FIRs are read together, it becomes clear that the incident started in the morning as per both the FIRs. C.R. No.I-154/2008, lodged by Mr. M.N. Pandya, Sub Inspector of Police stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the scene of incident in C.R. No. I-154/2008. Panchnama of the scene of incident of C.R. No.I-154/2008 includes the scene of occurrence of C.R. No.I-155/2008 which makes it clear that both the FIRs pertain to the two crimes committed in the same transaction. The scene of offence panchnamas establish clearly that the incidents in both the cases could not be distinct and independent of each other. In fact, it is nobody's case that incident relating to CR No.I-155/08 occurred at Dhedhal Chokdi (Cross-Roads). 20. In view of the above, we are of the considered opinion that the High Court reached the correct conclusion and second FIR C.R. I-155/2008 was liable to be quashed. Tainted Investigation 21. In some of the applications before the High Court, allegations of bias malafide against the investigating agency had been made submitting that investigation had not been fair and impartial and therefore, it stood vitiated because of material irregularities and therefore, investigation be handed over to some independent agency like CBI. The Court examined the grievance of those applicants and recorded the following findings:- (i) In spite of the fact that serious allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be revealed. All the accused belonging to the same community, i.e., Koli Patels have been shown to be absconding accused in the charge-sheet filed against some of the accused belonging to the Bharwad community despite the fact that they are shown as witnesses in another FIR and their statements had been recorded by the Investigating Officer; (viii) Accused of one case have been shown by the prosecution in the charge sheet as absconding accused but they had been attending court proceedings in the company of the Investigating Officer in another case; (ix) There is over-action in relation to one FIR and complete inaction in so far as the another FIR is concerned. The resultant effect of the poor investigation carried out in connection with one FIR would be that all the accused of the said FIR would be acquitted and only the accused of another FIR which belongs to one community would have to face the prosecution; (x) In such a fact-situation, persons who would otherwise be co-accused, would be witness against them in the case arising out of the another FIR which would cause immense prejudice to them; (xi) Deletion of offence under section 302 IPC from the FIR CR No.I-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Bavla Police Station I-C.R. No.154 of 2008." 24. We fail to understand that if the High Court has quashed the FIR in C.R.No. I-155/2008, how the charge sheet, which was filed after investigation of allegations made therein, could survive and be directed to be read in another case and other consequential orders be also read in another case. Further in case the High Court came to the conclusion that investigation was totally biased, unfair and tainted, the investigation had to be held to have stood vitiated and as a consequence thereof charge sheets filed in both the cases could have become inconsequential. 25. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuinen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial reasons for holding it. Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial. Therefore, the court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: "The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence..... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. ....A vitiated investigation is the precursor for miscarriage of criminal justice." (Emphasis added) 28. In Nirmal Singh Kahlon (supra), this Court held that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. 29. In Manu Sharma Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. "Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction." 31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere. (vide: S.N. Sharma Vs. Bipen Kumar Tiwari & Ors. AIR 1970 SC 786). 32. In Kashmeri Devi Vs. Delhi Administration & Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair. 33. The above referred to judgments of this Court make it clear that scheme of investigation, particularly, Section 173(8) Cr.P.C. provides for further investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation. Thus, the order of the High Court requires modification to the extent that the charge sheets in both the cases and any order consequent thereto stand quashed. In case, any of the accused could not get bail because of the pendency of these appeals before this Court, it shall be open to him to apply for bail or any other relief before the appropriate forum. In case, such an application is filed, we request the appropriate court to decide the same expeditiously and in accordance with law. It is further clarified that those persons who were arrested in connection with CR No. I-155/08 would not stand arrested in connection with CR No. I-154/08. However, if during the fresh investigation, any incriminating material against any person is discovered, the Investigating Authority may proceed in accordance with law. It shall be open to the accused to approach the appropriate forum for any interim relief as per law. 35. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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