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2017 Supreme(Bom) 438
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE AND K.K. SONAWANE, JJ.
Mohammad Hisham Osmani s/o Yusuf Osmani - Applicant
Versus
The State of Maharashtra and Ors. - Respondents
CRIMINAL APPLICATION NO. 5784 OF 2016
Decided On : 06-04-2017
For the Petitioner: Mr. S.S. Kazi
For the Respondent-State: Mr. D.R. Kale, Mr. R.G. Joshi
Important Point - The grievances of respondent No. 2 against applicant relate to the incidents of same offence and seem to be integral part of same transaction.
Headnote:Indian Penal Code, 1860 - Sections 120-B, 204, 417, 420, 425, 468 and 471-Criminal Procedure Code, 1973, Sections 154, 300 and 482-Cheating and forgery.-Since allegations in both FIRs are based on one and same offence allegedly committed during course of same transaction hence second FIR quashed and set aside.
In such premises, in case, Court allowed to conduct the separate investi- gation on the basis of subsequent FIR, it would amount to abuse of process of law. It would also amount to an violation of principle of double jeopardy. Therefore, Court is of the considered opinion that the subsequent FIR bearing Crime No. 321 of 2016 registered against the applicant at City Chowk police station at the instance of respondent No. 2 is contrary to law. It would be fallacious to consider that there would be any larger conspiracy than the one already alleged in the earlier complaint filed under Section 200 of Criminal Procedure Code. The subsequent crime as alleged would not be of such magnitude that it would fall beyond the ambit of trial of private complaint bearing RCC No. 549 of 2016 filed by respondent No. 2. In the result, Court has no hesitation to quash and set aside the impugned FIR by allowing the application in the interest of justice.
Criminal Procedure Code, 1973 - Section 154-Second FIR.-Issue of maintainability of second FIR is a mixed question of law and facts depending on merits of given case.
It is settled principle of law that issue of sustainability of two FIRs has to be examined on merits of each case, whether a subsequently registered FIR is a second FIR about the same incident or offence or is based on distinct and different set of facts and whether its scope of inquiry is totally different and not identical one. There would not be any strait-jacket formula to be applied uniformly to all cases. It will always be a mixed question of law and facts depending on the merits of a given case (emphasis supplied on Anju Chaudhary`s case 2014 (1) Mh LJ (Cri) (SC) 494 : 2013 (6) SCC 384).
K.K. Sonawane, J.
1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2. The applicant has preferred the present application under Section 482 of the Cr.P.C. seeking to exercise the inherent jurisdiction of this court to quash and set aside the FIR bearing No. 321 of 2016 registered against the applicant and others at City Chowk police station, Aurangabad, for the offence punishable under sections 420,425, 465, 468, 471, 204, 417, 120-B r/w. 34 of IPC. The applicant agitated the validity, legality and propriety of the impugned FIR being subsequent FIR of the same offence and the same set of allegations as contained in the earlier FIR bearing Crime NO. 271 of 2014 registered at City Chowk police Station, Aurangabad, following the directions of the learned Magistrate dated 3.11.2014 under Section 156(3) of the Cr.P.C. in private complaint proceeding vide Criminal M.A. No. 2247 of 2014 initiated at the behest of the respondent No. 2 – Rafik Ahmed s/o. Mohd. Usman.
3. The genesis of the application culled out in brief is as under :-
[a] That, the contentious land Gat No.11 admeasuring 2H 3R, located at village Georai, Taluka Aurangabad was the ancestral property of respondent No.2 Rafik Ahmed s/o. Mohd. Usman. It has been alleged that the father of the respondent No.2 has executed the document of sale deed of contentious land in favour of one Yusuf Ali Kurban Hussain by way of security. After the death of Yusuf Ali, his son Mohd. Yusuf Ahmed persuaded the proceeding for mutation of his name in the revenue record. The concerned Tahsildar after appreciating the circumstances and objections raised on behalf of respondent No. 2 mutated the name of Mohd. Yusuf in the revenue record being the purchaser of property. The respondent No.2 approached to the higher authority against the mutation allowed by the concerned Tahsildar but the respondent No.2 did not succeed in his attempt. Eventually, he filed Civil proceeding bearing RCS No.1131 of 2001, for cancellation of sale deed executed by his father in favour of Yusuf Ali. In the meantime, Yusuf Ali's widow – Hussainabee alienated the contentious suit land Gat No.11 in favour of the applicant for consideration by executing a registered sale deed. Accordingly, the applicant approached to the revenue authority for mutation of his name in the revenue record but he came to know about the civil litigation initiated by the respondent No.2 for cancellation of original sale deed executed in favour of Yusuf Ali – husband of Hussainabee. The applicant intervened in the litigation and got the ex-parte decree passed in favour of respondent No.2 set aside and quashed.
[b] There was a chequered history of litigation relating to contentious suit land Gat No.11, but the respondent No.2 failed to obtain favourable order from the Court of law. Meantime, in the year 2008, after ex-parte decree in favour of respondent No.2, his name came to be mutated in the revenue record for the contentious land Gat No.11 of village Georai, Tahsil Aurangabad. But, after setting aside the ex-parte decree from the Court, the applicant approached to the revenue authority to get his name mutated in the revenue record. The concerned revenue authority, appreciated the circumstances and after obtaining opinion from the concerned DGP, mutated name of the applicant in the revenue record. Being dissatisfied with the mutation entry of the applicant in the revenue record by the concerned Tahsildar and Talathi, the respondent No.2 rushed to the City Chowk police station and ventilated the grievances against the revenue personnel and the applicant. But the allegations nurtured on behalf of respondent No.2 Rafik Ahmed were of civil in nature, the police authority found reluctant to act upon the complaint of the respondent No.2 Rafik Ahmed and advised him to take recourse of the Court of law. Therefore, the respondent No.2 approached to the Court of learned Magistrate and filed private criminal complaint u/se
