2010 Supreme(Guj) 265

2010 (3) GCD 2047 (SC)
Hon’ble Mr. Justice Dr. B.S. Chauhan &
Hon’ble Mr. Justice P. Sathasivam
Babubhai & Anr.
Versus
State of Gujarat & Ors.
Criminal Appeal No. 1599 of 20101—Decided on 26/08/20102

Point in Issue :
Whether High Court is justified in quashing the later FIR of the same incident and clubbing it with the first and order reinvestigation?

Headnote:Head Note :

       [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 147 to 149, 302, 307, 332, 333, 436 and 427 — Bombay Police Act, 1951 — Section 135 — Prevention of Damages of Public Property Act, 1984 — Sections 3 and 7 — Criminal Procedure Code, 1973 — Sections 154, 158, 162, 169, 170, 173, 173(2) and 173(8) — Two FIRs — Same incident — High Court quashed the FIR registered later and clubbed it with the first FIR — Ordered to investigate that also to the extent feasible — Court also transferred the investigation to State CID Crime Branch — Challenge on ground that both the FIRs relates to different incidents not found acceptable on facts — Both the FIRs found related to same incident, therefore, Court held order of High Court can not be faulted — Both the parties are of the opinion that investigation has not been fair, therefore, High Court rightly transferred the case to State CBCID.

       Held :

       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 Incharge 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. [Para 17]

       While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in Close proximity of time, therefore, they is two parts of the same transaction. More so, the death of Ajitbhai Prahladbhai has been mentioned in both the FIRs. From the report for deletion of Section 302 IPC, it is apparent that it is not the case of the Investigating Officer that the death of Ajitbhai Prahladbhai had not occurred during the course of the incident in connection with which C.R. No. I-154 of 2008 came to be registered. [Para 18]

       Thus, it is evident from the above that not only investigation in respect of both the FIRs had not been fair and has caused serious prejudice to one party but even before the High Court conduct of the party and investigating agency has not been fair. [Para 21]

       None of the learned Counsel appearing for the parties has raised any doubt about the correctness of those findings, rather all of them has fairly conceded that investigation was not conducted properly. [Para 22]

       Thus, it is evident that in exceptional circumstances, the Court in order to prevent the miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances. [Para 33]

       In the instant case, admittedly, the High Court has given detailed reasons for coming to the conclusion that the investigation has been totally one-sided, biased and mala fide. One party has been favoured by the investigating agency. The natural corollary to this finding is that the other party has been harassed in an unwarranted manner. Thus, the cause of the other party has been prejudiced. The charge sheets filed by the investigating agency in both the cases is against the same set of accused. A charge sheet is the outcome of an investigation. If the investigation has not been conducted fairly, Court is of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor of miscarriage of criminal justice. [Para 34]

       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. [Para 34]

       Law Laid Down :

       Concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of Constitution.