Chirag M. Pathak vs Dollyben Kantilal Patel

CRIMINAL APPEAL Nos.1947-1956 OF 2017 (ARISING OUT OF SLP (Crl) Nos.1218-1227/2014)

Chirag M. Pathak & Ors. Etc.Etc. ....Appellant(s)

VERSUS

Dollyben Kantilal & Ors. ….Respondent(s)

With

Special Leave Petition (Crl.) Nos.869-878 of 2014

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) These appeals are filed by appellants against

the common judgment dated 17.10.2013 passed by

the High Court of Gujarat at Ahmedabad in Special Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2017.11.16 14:48:50 IST Criminal Application Nos.1265, 1266, 1267, 1268, Reason: 1 1269, 2930, 2931, 2932, 2933 and 2934 of 2013

whereby the High Court allowed the applications

filed by the respondents herein under Section 482 of

Code of Criminal Procedure Code, 1973 (hereinafter

referred to as “the Code”) and quashed the five First

Information Report (in short “the FIR”)

Nos.50/2013, 51/2013, 52/2013, 53/2013 and

54/2013 dated 19th February, 2013.

3) Facts of the case and the issues involved in

these appeals are short. They, however, need

mention hereinbelow to appreciate the controversy.

4) Six FIRs were registered in different Police

Stations in the State of Gujarat against six different

Co-Operative Housing Societies for commission of

various offences alleged to have been committed by

the President, Office Bearers and other persons of

the six Societies under Sections 406, 409, 420, 465,

467, 468, 471,120-B and 477-A of the Indian Penal

2 Code, 1908 (hereinafter referred to as “IPC”). The

details of these six FIRs are as under:

Sr. Date Name & Survey Period & Name of Name of No & FIR Regn. of No. & Place of accused victims . No. Society Village offence 1 CR Balasinor S. Since Kantilal Ranjitrai 1-5/2 Society – No.320, 1984 to Ambalal Joshi 012 Plot 320/1, till Patel, dated No.A/71 329, 21.5.12 Dollyben 21.5.2 GH-11136 332 Kantilal 012 Village - Patel, registe Pipaliya Ashok red Desaibhai with Patel, Gandh Sachin i Rajendra Nagar Patel, CID Haresh Crime Shashikant PS Patel, Jashbhai Shanker-b hai Patel

2 C.R.I- Balasinor S.No.320, 20.7.11 Kantilal Kanchan-la 50/20 Society 320/1, to Ambalal l Bhatt, 13 GH-11136 329, 332 28.9.11 Patel, Arvind dated Village-Pi at 60, Dollyben Kanchan-la 19.2.2 paliya Vimal Kantilal l Bhatt, 013 Area– 1, Society, Patel, Vasant R. registe 14, 426, Makar-p Haresh Chavda, red sq. mt. ura Shashikant Indiraben with Patel, Vikas Ratilal Makar Ramesh-m Adhiya, pura ore Manjula-be P.S. Chandu-bh n Arvind Vadod ai, kumar ara Jashbhai Shah, Shanker-b Nainaben hai Patel Suresh Kumar Parikh, Jasvant-bh ai Kodarlal Parikh, Usnas

3 Navin Chandra Kacheriya Ravjibhai A. Patel, Bipin Chandra A. Patel, Parixit Ambalal Patel, Naresh kumar C. Patel, Kanubhai A. Vyas, Ratilal A. Patel, Sunil kumar Prem kumar Jethmal-an i, Rekha S. Patel 3 C.R.I- Valkesh-w S.No.45 15.7.11 Kantilal Dhananj- 51/20 ar Society & 47 to Ambalal ay 13 dt. GH-11133 Village 29.9.11 Patel, Vallabh-b 19.2.1 Kamla-p at 60, Dollyben hai Patel, 3 ura Vimal Kantilal Jayaben registe Area-49, Society, Patel, A. Patel, red 979 sq. Makar-p Sachin Mayank with mt. ura Rajendra N. Patel, Makar Anuben, Nikhilhar-

pura Chandu-b sukhray P.S. hai, Bhatt, Vadod Jashbhai Dipa ara Shanker- Koradiya, bhai Patel Jayvanti-b en Sevantilal Vaan Hansaben Ratilal Shah, Jayshree Suresh Chandra Shah, Amita Piyush-bh ai Parikh,

4 Pragna-be n Manoj-bh ai Mehta, Bachub-b hai A. Patel, Haresh B. Brahm-bh att, Mukesh, C Patel, Kokila A. Patel, Rajesh M. Patel, Babu-bhai S. Patel, Arvind-bh ai P.Amin, Prakash-b hai Ishwar-bh ai Patel, Bipin-cha ndra Ambalal Patel 4 C.R.I- Parla S.No.54 13.7.11 Kantilal Prem 52/20 Society Village to Ambalal kumar 13 dt. GH-11134 Kamla-p 29.9.11 Patel, Jagtram 19.2.1 ura at 60, Dollyben Jeth-mala 3 Area-69, Vimal Kantilal ni, registe 706 sq. Society, Patel, Hansaben red mt. Makar-p Jitendra V. with ura Shashi-ka Thakkar, Makar nt Patel Vidyaben pura Bhanu-be N. Patel, P.S. n Kantilal Champa-b Vadod Patel en S. ara Jashbhai Patel, Shankar- Suresh-bh bhai Patel ai A. Vyas Suman-b hai A. Patel, Balkrush- na M. Pandya, Narmada- ben M.

5 Patel, Sarojben C Patel, Arvind-bh ai M. Shah 5 C.R.I- Alkapuri S.No.46, 11.7.11 Kantilal Kokila 53/20 Society 48 & 49 to Ambalal Sirish 13 dt. GH-11135 Village 29.9.11 Patel, Modi, 19.2.1 Kamla-p at 60, Dollyben Ketan 3 ura Vimal Kantilal Dinesh registe Area-94, Society, Patel, Bhansali, red 900 sq. Makar-p Ashok-bh Jagdish J. with mt. ura ai Kapadia, Makar Desaibhai Vinodini pura Patel, Kapadia, P.S. Bhartiben Gautam Vadod Ashok-bh Kapadia, ara ai Patel, Anjana Jashbhai Kapadia, Shanker- Bhariben bhai Bhansali, Patel, Girish Chandu-b Doshi, hai Asish Shah, Suresh Kantilal Shah, Arvind-bh ai, Vallabh-b hai Patel, Vallabh-b hai Tribhuvan -bhai Patel, Vinubhai B. Patel, Kanchan- bhai Patel, Jashbhai Ravji-bhai Patel, Chandu-b hai B. Patel, Rashmi-b en S.

6 Patel, Chandra- kant S. Patel, Kastur-bh ai Lallubhai Patel 6 C.R.I- Kheta-wa S.No.50, 25.7.11 Kantilal Rita C 54/20 di Society 51, 52A, to Ambalal Kapadia, 13 dt. GH-11486 52B 29.9.11 Patel, Vana 19.2.1 Village at 60, Dollyben Kulin 3 Kamla-p Vimal Kantilal Ghatalia, registe ura Society, Patel, Vaishali red Area-96, Makar-p Kishore N Ghatalia, with 519 sq. ura Bhatt, Kundan Makar mt. Dilip Doshi, pura Manibhai Jaimit P.S. Patel, Doshi, Vadod Jashbhai Upendra ara Shanker- Ashabhai bhai Patel Patel, Bipinbhai Chotabhai Patel, Dahya-bh ai B. Patel, Kiranbhai J. Parikh, Arvind-bh ai Chotabhai Patel, Manubhai Chotabhai Patel, Ramesh-b hai Shana-bh ai, Harshad- bhai Mudji-bha i, Shakunt-l aben Jesan-bha i

7 5) The accused (respondent Nos.1, 2 and 3

herein, who are members of one family), felt

aggrieved by the registration of above-mentioned

five FIRs (item 2 to 6) which had implicated them for

commission of several offences, filed Criminal

Applications under Section 482 of the Code in the

High Court of Gujarat and sought quashing of the

above-mentioned five FIRs.

6) The challenge was essentially founded on the

ground that filing of the first FIR(1Cr. No.5/2012

dated 21.05.2012) appearing at S.No.1 above takes

care of remaining five FIRs and, therefore, the

remaining five FIRs are wholly uncalled for and

should not have been registered inasmuch as the

five FIRs are nothing but repetition of the first FIR

and hence all the five FIRs deserve to be quashed.

7) In other words, the contention of the accused

persons before the High Court was that the

8 subsequent registration of five FIRs after

registration of first one was nothing but repetition of

first FIR inasmuch as all the five FIRs are founded

on the same allegations, which are part of the first

FIR and, therefore, accused persons cannot be

subjected to suffer five more prosecution cases in

relation to the same offences on the strength of five

FIRs once they are made to suffer the prosecution in

relation to offences on the strength of first FIR.

8) It was urged that once the investigation in

respect of first FIR is over and charge-sheet

pursuant thereto is filed in the concerned Court, it

would take care of remaining five FIRs and it is for

this reason the remaining five FIRs are wholly

uncalled for.

9) The State opposed the Criminal Applications. It

was, inter alia, contended that having regard to the

nature of allegations made in each FIR in relation to

9 the commission of the several offences, no case is

made out to quash any FIR out of five and,

therefore, all the six FIRs must be allowed to be

investigated independently of one another. After

completion of the investigation, charge-sheets are

allowed to be filed in each case against all the

accused persons involved in the scam in accordance

with law so that each case is brought to its logical

end in the Court of law against all the accused

persons.

10) The High Court found merit in the contention

of the accused persons and, by impugned judgment,

allowed their Criminal Applications and while

quashing the five FIRs passed the following

directions in the impugned order:

“In the light of the above discussion, the petitions succeed and are accordingly allowed. The first information reports registered vide Makarpura Police Station 1-CR.No.50/2013, 51/2013, 52/2013,

10 53/2013 and 54/2013 dated 19th February, 2013 are hereby quashed and set aside. As a consequence thereof, the investigation carried out pursuant to the second first information reports, shall be treated as part of the investigation carried out in respect of the 1st first information report and the entire record of the subsequent first information reports shall be forwarded to the st Investigating Officer of the 1 first information report, who shall consider the same and carry out investigation in respect of the detailed allegations made therein. Rule is made absolute accordingly.”

11) The appellants herein are the members of

these Societies. They claim to be the victims of

several illegal activities alleged to have been

committed by the accused persons (respondents

herein) in the affairs of the Societies and,

particularly, those committed in relation to sale of

the lands belonging to the Societies, siphoning off

the funds of the Societies, falsification of the

accounts of the Societies etc.

12) The appellants, felt aggrieved of the impugned

judgment, which resulted in quashing of 5 FIRs,

11 have filed these appeals by way of special leave

before this Court.

13) Heard Mr. Huzefa Ahmadi, learned senior

counsel for the appellants and Mr. Mohit

Choudhary, learned counsel for the respondents.

14) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow the appeals, set aside the

impugned judgment and dismiss the Criminal

Applications filed by the accused persons

(respondents herein) under Section 482 of the Code

out of which these appeals arise.

15) The short question which arises for

consideration in these appeals is whether the High

Court was justified in quashing the five FIRs

appearing at S.Nos. 2 to 6 extracted above.

16) We have perused all the six FIRs with a view to

find out as to whether the grievance urged by the

12 accused persons is made out on facts or not. Having

perused, we find ourselves unable to agree with the

reasoning and the conclusion arrived at by the High

Court, which led to quashing of the five FIRs.

17) We, however, do not consider it proper to give

our detailed reasoning as it may cause prejudice to

all parties concerned because the investigation is

not yet complete and the trial in the first FIR has

not yet started except to observe that there

appeared no justifiable reason for the High Court to

quash the five FIRs by taking recourse to the

inherent powers under Section 482 of the Code.

18) We find that the High Court had labored hard

when it devoted 46 pages in examining the factual

issues involved in six cases, appreciated the

allegations of FIRs like an Appellate Court to some

extent and then reached to a conclusion that all the

six FIRs were based on identical facts and the

13 allegations contained therein overlap and, therefore,

the first FIR alone will survive for investigation

whereas remaining five FIRs would not survive and

merge in the first FIR.

19) We do not agree with the manner, reasoning

and the conclusion arrived at by the High Court in

the impugned judgment.

20) We find that all the six Co-Operative Societies

against whom the afore-mentioned FIRs were

registered are different, their members are different,

their area of operation is different, the lands which

were sold/transferred are also situated in different

areas, the lands were also sold/transferred to

different parties on different dates for different

sums, the accounting books are different, the

persons involved in the falsification of the accounts

of every Society are different etc. etc.

14

21) In short, having regard to the totality of the

factual allegations made for constituting the

commission of several offences in relation to every

Co-Operative Society, it is not possible to hold that

all the FIRs are overlapping on one another and that

first FIR alone will be sufficient to take care of the

remaining five FIRs.

22) There may be some overlapping allegations in

the FIRs but that is due to myriad reasons and one

reason could be that all the Co-operative Societies

were engaged in the same business of

sale/purchase of housing and the plots of land

which were sold to different persons in different

areas by same accused persons due to their

involvement in the affairs of all Co-Operative

Societies. However, these facts were not by

themselves sufficient to quash the five FIRs at the

stage of investigation itself.

15

23) In our view, such issues and many more,

namely, the nature and manner of conspiracy,

whether it was confined to each Society or there was

one or larger conspiracy, how and in what manner it

was accomplished, who were parties to it, who were

those persons who secured financial benefits, what

was the modus operandi for mis-appropriation of the

funds of each Society and how the funds were

siphoned off from each Society etc., need detailed

investigation with respect to each Cooperative

Society. Once the investigation is complete in

relation to each Society, the same would form part

of the separate charge-sheet for being proved with

the aid of evidence in a competent Court against

each Society and persons involved in the scam. It is

for the Court to examine the factual issues arising

in every case by appreciating the evidence once

16 adduced in support thereof and pass appropriate

orders in accordance with law.

24) The High Court, in exercise of its powers under

Section 482 of the Code, cannot undertake a

detailed examination of the facts contained in the

FIRs by acting as an Appellate Court and draws its

own conclusion. It is more so when investigation in

other Societies is not yet complete.

25) In our considered opinion, it is only when on

reading the FIR, a sheer absurdity in the allegations

is noticed and when no prima facie cognizable case

is made out on its mere reading due to absurdity in

the allegations or when facts disclose prima facie

cognizable case and also disclose remarkable

identity between the two FIRs as if the first FIR is

filed second time with no change in allegations then

the Court may, in appropriate case, consider it

17 proper to quash the second FIR. Such is not the

case here.

26) Indeed, in our view, few distinguishing factual

allegations mentioned above are enough to repel the

challenge made by the accused persons to the

impugned FIRs and the same should have been

made basis to dismiss the Criminal Applications of

the accused persons.

27) We may, at this stage, apposite to mention a

Three Judge Bench decision of this Court in State

of West Bengal & Ors. vs. Swapan Kumar Guha &

Ors. (AIR 1982 SC 949) wherein this Court

examined somewhat a similar question in the

context of the powers of the Court.

28) The learned Chief Justice, Y.V Chandrachud

and Justice A.N. Sen, speaking for the Bench in

their concurring opinion held as under:

“Whether an offence has been disclosed or not must necessarily depend on the facts and

18 circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.

The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.”

29) We apply the aforesaid principle which, in our

opinion, applies to the facts of the case on hand and

accordingly decline to quash the impugned FIRs.

30) Learned counsel for the respondents (accused)

however, vehemently tried to support the impugned

judgment and took us through the entire factual

19 allegations of all six FIRs. It was his submission

that on perusal of the impugned FIRs, there does

exist overlapping of the offences in the FIRs on

identical allegations with no change in any of the six

FIRs except repetition of the words and hence the

High Court was right in quashing the five FIRs.

31) We are afraid to accept this submission of

learned counsel for the respondents (accused).

Having noticed few significant distinguishing

features in six FIRs mentioned above, the

submission has no merit.

32) In view of foregoing discussion, we cannot

concur with the reasoning and the conclusion

arrived at by the High Court in the impugned

judgment. The appeals thus succeed and are

allowed. The impugned judgment is set aside.

33) It is held that all the six FIRs filed against the

respondents (accused persons) are legal and proper

20 and each have to be given effect for making proper

and full investigation in relation to the offences

alleged in each FIR. The Investigating Officer would

now speed up the investigation in relation to the

affairs of each Co-operative Society and on its

completion file charge-sheet in each case in

accordance with law in a competent Court.

34) Needless to say that when all the six cases are

filed in the concerned Courts, they would be

clubbed together and tried by one competent Court

in accordance with law.

35) The parties are at liberty, at an appropriate

stage, to move to the High Court with a prayer to

club and then transfer all the six cases to one

competent Court. The High Court would accordingly

pass appropriate orders of clubbing and transferring

all the six cases to one Court as it may deem fit and

21 proper to enable the said Court to dispose of all the

six cases in accordance with law.

Special Leave Petition (Crl.) Nos.869-878 of 2014

In view of the above judgment rendered in

appeals arising out of S.L.P.(Crl.)Nos.1218-1227 of

2014, these special leave petitions are disposed of.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

November 15, 2017

22