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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.1947-1956 OF 2017
(ARISING OUT OF SLP (Crl) Nos.1218-1227/2014)
Chirag M. Pathak & Ors.
[Link]. ....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
[Link] IST
Criminal Application Nos.1265, 1266, 1267, 1268,
Reason:
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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
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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 [Link].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
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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 [Link].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,
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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 [Link],
Prakash-b
hai
Ishwar-bh
ai Patel,
Bipin-cha
ndra
Ambalal
Patel
4 C.R.I- Parla [Link].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.
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Patel,
Sarojben
C Patel,
Arvind-bh
ai M.
Shah
5 C.R.I- Alkapuri [Link].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.
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Patel,
Chandra-
kant S.
Patel,
Kastur-bh
ai
Lallubhai
Patel
6 C.R.I- Kheta-wa [Link].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
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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 [Link].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
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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
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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
[Link].50/2013, 51/2013, 52/2013,
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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,
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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 [Link]. 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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
