[1.0] As common question of law and facts arise in both these applications arising out of one common FIR, both these applications are decided and disposed of together by this common judgment and order. [2.0] Criminal Miscellaneous Application No.13148/2009 under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original accused Nos.1 and 2 to quash and set aside the impugned FIR being C.R. No.I241/2009 registered with Deesa City Police Station, lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 467, 477, 192, 193, 506(2) and Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
[2.1] Criminal Miscellaneous Application No.13869/2009 under Section 482 of the CrPC has been preferred by the applicants herein – original accused Nos.3, 4 and 7 to quash and set aside the impugned FIR being C.R. No.I241/2009 registered with Deesa City Police Station, lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 467, 477, 192, 193, 506(2) and Section 34 of the IPC.
[3.0] That respondent No.2 herein – original complainant had lodged the impugned FIR with Deesa City Police Station against applicants and others for the offences punishable under Sections 467, 477, 192, 193, 506(2) and Section 34 of the IPC alleging inter alia that the accused persons in connivance with each other created a forged and concocted Power of Attorney of the complainant and his wife in favour of accused No.1 (applicant No.1 of Criminal Miscellaneous Application No.13148/2009) and executed one sale deed in favour of original accused No.2 (applicant No.2 of Criminal Miscellaneous Application No.13148/2009) as power of attorney of the complainant and his wife and used the same as true though they were knowing that the said power of attorney is forged and concocted one. Being aggrieved and dissatisfied with the impugned FIR, applicants herein – original accused have preferred the present Criminal Miscellaneous Applications under Section 482 of the CrPC to quash and set aside the impugned FIR.
[4.0] Shri Dipak Patel, learned advocate appearing on behalf of the applicants has vehemently submitted that the impugned FIR is second complaint and therefore, the same is not maintainable. It is submitted that earlier making very allegations, the original complainant made one written complaint dated 16.03.2009 to the District Superintendent of Police, Palanpur which came to be disposed of after proper investigation by the Local Crime Branch, Palanpur and also submitted report dated 29.05.2009 to that effect. It is submitted that thereafter the impugned FIR is a second complaint which is not maintainable. In support of his above submission, Shri Dipak Patel, learned advocate appearing on behalf of the applicants has heavily relied upon the decision of the Hon'ble Supreme Court in the case of T.T. Antony v. State of Kerala and Ors. reported in (2001)6 SCC 181 as well as the decision of the learned Single Judge in the case of Anvar Azimbhai Sheikh v. State of Gujarat & Ors. reported in 2009(3) GCD 2002 (Guj).
[4.1] It is further submitted by Shri Patel, learned advocate appearing on behalf of the applicants that as such the original complainant has already instituted a civil suit for declaration and permanent injunction with respect to the very disputed lands in question and therefore, once the original complainant has already initiated the civil proceedings, the criminal proceedings with respect to the very document/power of attorney which is the subject matter of civil suit, is not maintainable. It is, therefore, submitted that the dispute is purely of civil nature which is tried to be converted into criminal which is nothing but abuse of process of law and the Court and therefore, it is requested to quash and set aside the impugned criminal proceedings in exercise of powers under Section 482 of the CrPC. No other submissions have been made.
[5.0] Both these applications are opposed by Shri Harshad K. Patel, learned advocate appearing on behalf of respondent No.2 – original complainant and Shri K.L. Pandya, learned Additional Public Prosecutor on behalf of the State/Investigating Officer. It is submitted that as such the impugned FIR cannot be said to be a second complaint as earlier written complainant submitted by the complainant dated 16.03.2009 was not registered as FIR and there was no investigation of the case after registering the complaint as FIR and that the report submitted by Local Crime Branch, Palanpur cannot be said to be a report under Section 169/173 of the CrPC. Therefore, it is submitted that when the earlier written complaint dated 16.03.2009, which was made to the DSP, Palanpur was not registered as FIR, the present FIR cannot be said to be a second complaint. It is submitted that if the impugned complaint submitted by the complainant would have been registered as FIR and thereafter investigation would have been carried out and any report was submitted to the learned Magistrate under Section 169/173 of the CrPC, in that case, the learned Magistrate would have given the opportunity to the complainant before accepting such a report. Therefore, it is submitted that when the written complaint dated 16.03.2009 was not registered as FIR and the report of the Local Crime Branch, Palanpur is not forwarded to the concerned Magistrate, the impugned FIR cannot be said to be a second complaint. Therefore, it is submitted that in the aforesaid facts and circumstances of the case, the decisions relied upon by the learned advocate appearing on behalf of the applicants would not be applicable.
[5.1] Now, so far as the contention on behalf of the applicants that as the complainant had already instituted the suit for declaration and permanent injunction and the alleged forged power of attorney is the subject matter before the Civil Court and therefore, the present criminal proceedings are not maintainable is concerned, it is submitted that as held by the Hon'ble Supreme Court in the case of Kamaladevi Agarwal v. State of W.B. & Ors. reported in (2002)1 SCC 555 as well as in the case of Vitoori Pradeep Kumar v. Kaisula Dharmaiah & Ors. reported in (2002)5 SCC 581, even if the forged power of attorney is the subject matter before the Civil Court, there is no bar to initiate the criminal proceedings. It is submitted that as held by the Hon'ble Supreme Court, in such a case both, criminal as well as civil proceedings, are maintainable simultaneously.
[5.2] It is further submitted that as such the averments and allegations in the FIR discloses primafacie commission of cognizable offences of creating and concocting and forging the documents which are further required to be investigated by the IO and even the power of attorney and other documents are required to be send to the FSL. Therefore, it is requested not to exercise powers under Section 482 of the CrPC and not to quash and set aside the impugned FIR at threshold.
[6.0] Heard the learned advocates appearing for respective at length. At the outset it is required to be noted that the impugned FIR has been lodged by respondent No.2 herein – original complainant making specific allegations with respect to concocting and forging power of attorney and other documents which are further required to be be investigated by the IO. During the course of investigation, the IO is required to seize and collect the documents and same are required to be send to FSL. Therefore, when the averments and allegations in the FIR discloses prima facie commission of cognizable offences of forging documents etc. and the same are further required to be investigated by the IO, the impugned FIR is not required to be quashed and set aside at the threshold and in exercise of powers under Section 482 of the CrPC without even permitting the IO to conduct the investigation.
[6.1] The main contention on behalf of the applicants to quash and set aside the impugned FIR is that the impugned FIR is second complaint and therefore, the same is not maintainable. It is the case on behalf of the applicants that earlier the applicants made the written complaint to the DSP, Palanpur dated 16.03.2009 making same allegations against the applicants and other accused and that the Local Crime Branch, Palanpur investigated the said complaint and submitted the report dated 29.05.2009 to the effect that no offence has been committed by the accused and thereafter impugned FIR has been filed, which is a second complaint and therefore, relying upon the decision of the Hon'ble Supreme Court in the case of T.T. Antony (Supra) as well as Anvar Azimbhai Sheikh (Supra), it is requested to quash and set aside the impugned FIR. However, it is required to be noted that as such the written complaint made by the complainant to DSP, Palanpur dated 16.03.2009 was not registered as FIR under Section 154 of the CrPC and therefore, the impugned FIR cannot be said to be second complaint as sought to be contended on behalf of the applicants. The report dated 29.05.2009 by the Local Crime Branch, Palanpur cannot be said to be a report under Section 169 of the CrPC. It cannot be disputed that if the complaint is registered as FIR and the same is investigated and the IO submits the report that no offence is alleged to have been committed and the said report is forwarded to the concerned Magistrate, in that case, the learned Magistrate is required to apply his mind before accepting such a report and the learned Magistrate can take its own independent decision and learned Magistrate is not bound to accept the said report. If the concerned Magistrate is of the opinion that the report submitted by the IO is to be accepted, in that case, the concerned Magistrate is required to give an opportunity to the complainant and the concerned Magistrate is required to give an opportunity to the complainant to submit the protest application/objections which are required to be considered by the concerned Magistrate before accepting the report submitted by the IO. It is to be noted that the aforesaid can be done only when the investigation has been carried out after registering the complaint as FIR. In the present case, as stated herein above, the written complaint dated 16.03.2009 which was made to the DSP, Palanpur has not been registered as FIR and no report has been send to the concerned Magistrate. Therefore, the impugned FIR cannot be said to be a second complaint as sought to be contended on behalf of the applicants. In the aforesaid facts and circumstances of the case, the decision of the Hon'ble Supreme Court in the case of T.T. Antony (Supra) and the decision of the learned Single Judge in the case of Anvar Azimbhai Sheikh (Supra) would not be applicable. In the case before the Hon'ble Supreme Court in the case of T.T. Antony (Supra), it was a case of two FIRs. Similarly, even in the case before the learned Single Judge in the case of Anvar Azimbhai Sheikh (Supra), the complainant first filed private complaint under Section 190 of the CrPC and the learned Magistrate passed an order for inquiry under Section 202 of the CrPC and thereafter the complainant lodged the FIR/complaint to police. To that the learned Single Judge held that second complaint to the police was not maintainable. As such this Court is not in agreement with the view taken by the learned Single Judge in the case of Anvar Azimbhai Sheikh (Supra), as in the said decision, the learned Single Judge has not considered Section 210 of the CrPC. Be that as it may, on facts the aforesaid decisions would not be applicable to the facts of the present case.
[6.2] Under the circumstances, the contention on behalf of the applicants that the impugned FIR is second complaint and therefore, the same deserves to be quashed and set aside has no substance and cannot be accepted.
[6.3] Now, so far as the contention on behalf of the applicants that as the complainant had already instituted a civil suit for declaration and injunction with respect to the very land in question making same allegations of forging the power of attorney and therefore, the impugned FIR deserves to be quashed and set aside is concerned, the same has no substance. Merely because a civil suit is filed, it cannot be said that no criminal offence is made out at all and/or the same is not required to be investigated at all. As per catena of decisions of the Hon'ble Supreme Court, even if the dispute is of civil nature, it might involve ingredients of criminal offence also and both parallel proceedings are maintainable. It is required to be noted that even the alleged documents/power of attorney are required to be seized and the same are required to be send to the handwriting expert to consider the allegations of the complainant.
[7.0] For the reasons stated hereinabove and more particularly considering the fact that there are specific averments and allegations in the impugned FIR of concocting and forging the power of attorney as well as other documents which are further required to be investigated by the IO and even the said documents are to be seized and thereafter send to the FSL, no case is made out to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR at the threshold without permitting the IO to conduct investigation.
CR.MA/13148/2009 10/10 JUDGMENT [7.1] In view of the above, both the applications fail and the same deserve to be dismissed and are, accordingly, dismissed. Rule discharged in both the applications. Adinterim relief granted earlier stands vacated forthwith.
(M.R. Shah, J.) menon