Ganeshbhai Jakshibhai Bharwad and Others vs State of Gujarat and Others

H.N. Devani, J.—Considering the issue involved in the present petitions/applications, by consent of the learned advocates for the parties, the matters were heard finally. Hence, Rule. Learned advocates for the respective respondents waive service of notice of rule on behalf of the respective respondents.

As common facts and issues are involved in this group of writ petitions under Article 226 of the Constitution of India and applications u/s 482 of the Code of Criminal Procedure, 1973 which arise out of common first information reports, they were heard together and are being disposed of by this common judgment and order.

In Special Criminal Application No. 1675 of 2008, the petitioners (in all twelve in number) have prayed for the following substantive relief:

(a) This Hon''ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing that the investigation of C.R. No. I-154 of 2008 recorded in Bavla Police Station for the alleged commission of offence punishable under Sections 302, 147, 148, 149, 504, 403, 436, 307, 427, 506 and Section 120B of the Indian Penal Code and Section 25(1)(A)(B) and Section 27 of the Arms Act, 1959 and Section 135 of the Bombay Police Act, 1951, be transferred to Investigating Agency so specifically constituted under orders of this Hon''ble Court as a Special Investigating Team or be directed to be investigated by the Central Bureau of Investigation.

In Special Criminal Application No. 1679 of 2008, the petitioner has prayed for the following substantive reliefs:

(a) Be pleased to admit this petition.

(b) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and direct that the investigation of the first information reports being C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008 recorded in Bavla Police Station be transferred to the Central Bureau of Investigation and the investigation be carried out by the officers of the Central Bureau of Investigation;

(c) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and quash and set aside the first information reports being C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008 recorded at Bavla Police Station qua the present petitioner;

(i) Be pleased to quash and set aside the first information report recorded as C.R. No. I-155 of 2008 recorded in Bavla Police Station which is recorded as C.R. No. I-155 of 2008 for the offences punishable under Sections 302, 147, 148, 149, 155, 503, 506 r/w Section 120B of the Indian Penal Code, 1860 and Sections 25(1)(A) and 27 of the Arms Act, 1959 and Section 135 of the Bombay Police Act, and the consequential action of filing of Challan and committal of the case to the Court of the Special Judge, Ahmedabad (Rural), Ahmedabad as Sessions Case No. (unnumbered) of 2009 as the ld. Judicial Magistrate First Class committed the case in pursuance of the Challan filed before him.

In Criminal Miscellaneous Applications No. 8249, 8361 and 8363 of 2009, the applicants therein have prayed to quash and set aside Sessions Case No. Unnumbered of 2009 pending before the learned Sessions Judge, Ahmedabad (Rural) which has been recorded in pursuance of committal of Criminal Case No. 2627 of 2008 recorded in pursuance of the first information report recorded as C.R. No. I-155 of 2008.

The main facts of all the cases are more or less similar. Most of the petitioners/applicants are residents of village Dhedhal whereas some of them are residents of Bavla town. All the petitioners/applicants belong to a community known as ''Bharwad''. It appears that in connection with transportation of goods and taking passengers, some altercation had taken place between Rickshaw owners belonging to the ''Bharwad'' community and the ''Koli'' community on 7th July, 2008. On the next day, that is, 08th July, 2008, two first information reports came to be registered with the Bavla Police Station vide C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008. The first information report being Bavla Police Station I-C.R. No. 154 of 2008 was lodged at the instance of one Mr. M.N. Pandya, Police Inspector, whereas the first information report being Bavla Police Station I-C.R. No. 155 of 2008 came to be lodged by one Babubhai Popatbhai Koli Patel. Some of the petitioners/applicants have been arraigned as accused in the connection with both the first information reports, whereas some have been arraigned as accused in connection with the second FIR viz. C.R. No. I-155 of 2008.

Though common grievances have been voiced in the petitions and applications, it may be pertinent to refer to certain averments made in the petitions/applications individually. In Special Criminal Application No. 1675 of 2008 it has been averred that the population of village Dhedhal is about 3000. Not a single Koli Patel resides in the said village. Even according to the first information report lodged by Mr. Pandya, the mob of 4000 to 5000 Koli Patels consisted of outsiders and not of village Dhedhal. The investigation being carried out by the Investigating Officer is entirely in a different direction. As per the police report, 56 persons are injured. The said persons are stated to have sustained injuries during the entire series of transactions of the incident of July 8, 2008. As per the statement of Mr. Pandya, all the injured are the accused of first information report C.R. No. I-154/2008. However, Mr. Saiyed, for the reasons best known to him, has not so far arrested any of the injured who have been discharged from the hospital, as accused in C.R. No. I-154 of 2008. In C.R. No. I-154 of 2008, the murder of one Ajit Prahlad Koli is reported. If those persons who are injured and their presence cannot be suspected are arrested in C.R. No. I-154 of 2008, they are supposed to face the charge u/s 302 of IPC as the learned Magistrate has not yet deleted the charge u/s 302 of IPC. That is the precise reason why the Investigating Officer is not arresting any of the accused. The first informant of C.R. No. I-155 of 2008 Mr. Babubhai Popatbhai Koli is found always in the company of Mr. Saiyed, the Investigating Officer. As per the statement of Mr. Pandya, Mr. Babubhai Popatbhai Koli is an accused in C.R. No. I-154 of 2008. Therefore, his formal arrest is required and he has to be produced before the learned Magistrate. Production of Mr. Babubhai Popatbhai Koli is not convenient to the Investigating Officer. The investigation is dishonest and is directed in a particular manner so as to see that the particular community is saved from the administration of criminal justice. In paragraph 4.7 of the petition, it has interalia been stated that the Police Officer who is investigating C.R. No. I-154 of 2008 and who claims that both the investigations are being carried out simultaneously and the statements recorded of the witnesses being common in both the cases, is not finding or able to trace any of the accused of the said first information report. The said conduct shows his dishonest intention. Whenever the petitioners are produced before the Court the informant of the first information report being C.R. No. I-155 of 2008 is found present. The relatives of the petitioners also see the said first informant move side by side with the police officers all the while. Mr. Pandya has accused him as one of the culprits of the first information report. Therefore the police officers who are carrying out investigation are trying to arrest the persons of Bharwad community by using all their resources at their ends. However, the accused of Koli community who are crossing the roads every time are not seen by the eyes of the police officers. Therefore, this investigation deserves to be transferred from the hands of the said officer whose conduct is beyond apprehension. (sic)

In Special Criminal Application No. 1679 of 2008, it has been averred that the petitioner has been falsely implicated in the offence in question. That selected persons who hail from well off families and are doing their lawful trade and business activity have been specifically targeted by the first informant Babubhai Popatbhai Koli. That though the first information report recorded by Mr. Pandya clearly shows that all the Koli Patels who were about 4000 to 5000, were not inhabitants of village Dhedhal and had traveled 30 to 40 Kms. gathered at Dhedhal village, assaulted the people of the Bharwad community, doused young girls with kerosene who but for the intervention of the police would have been burnt alive, the police have arrested persons belonging to the Bharwad community alone and have not arrested any person belonging to the Koli community. That it is unfortunate that three persons belonging to the Koli community have lost their lives, but none of them were residents of village Dhedhal nor had they any occasion or reason to be at Dhedhal. The police have attempted to show them to be passers-by who were present at village Dhedhal when they were assaulted. That in fact all three persons who have succumbed to their injuries had come to assault the members belonging to the Bharwad community and were not innocent persons as is sought to be made out. It is the case of the petitioner that the investigation that is being carried out is not fair and impartial. The police officers have segregated a series of transactions into two different offences and have recorded two different first information reports so as to save the members belonging to the Koli Patel community. That three written complaints had been given by persons belonging to the Bharwad community who were assaulted in the presence of the police and who were confined in their houses and their houses had been set to fire, however, the police authorities have not chosen to register first information reports on the basis of their complaints. That the investigation carried out by the Investigating Officer is biased against the petitioner''s community and in favour of the other community. No investigation is being carried out in respect of the first information report which is lodged by the Police Officer which discloses commission of a cognizable offence. It is also the case of the petitioner that both the first information reports arise out of the same incident and are part of the same transaction, hence, once a first information report being I-C.R. No. 154 of 2008 had already been registered in connection with the said offence, the police authorities were precluded from registering a second first information report in connection with the same incident and carrying out investigation in respect thereof. It is in these circumstances, that the petitioner has approached this Court praying to quash the first information report registered vide Bavla Police Station I-C.R. No. 155 of 2008.

In response to the petitions, the Minister of State for Fisheries and Industries who is one of the respondents in the petition/applications, has filed affidavits-in-reply denying the allegations of mala fide levelled against him. It is admitted that he had gone to visit the injured persons as well as relatives of persons who had lost their lives. It is however submitted that, he had in no manner influenced the investigation in respect of the offences in question. An affidavit-in-reply dated 31st June, 2009 has been filed by Mr. Nizamuddin Gulamrasul Saiyed, Circle Police Inspector, Dholka denying the averments and contentions in the petition. The first five paragraphs of the affidavit-in-reply are more or less formal in nature. In paragraph 5.1 the deponent has referred to certain details of the offence registered vide C.R. No. I-154/2008. In paragraph 5.2 it is stated thus:

5.2. The said complaint was registered by the Police Sub-Inspector Mr. M.N. Pandya, of Bavla Police Station stating there under that while he was patrolling in the Bavla Town a message was received from the Police Station Officer (PSO) at 10.00 am to the effect that some altercation had taken between two communities at Kheda (sic) Cross roads. On receiving the said information he returned to the Police Station and along with other police personnel rushed to the spot. Mr. M.N. Pandya along with other police personnel managed to disburse (sic) the crowd there. Thereafter he received information that there is another clash between two communities in the Dhedhal village. Immediately he contacted the Control Room as well as the Dy. Superintendent of Police of Dholka for further police support and thereafter rushed to the spot where both the communities armed with sticks, Dhariyas, swords etc. were attacking each other. The police had to resort to busting (sic) of teargas shells as well as lathi-charge. Several rounds of firing required to be resorted in order to disburse (sic) the crowd and it was a clash between 2000-3000 persons. During the altercation several persons were injured and 3 houses of Bharwad community were set on fire.

5.3 I say and submit that the investigation was undertaken by the Circle Police Inspector Mr. N.G. Saiyed. After recording the statements of witnesses, drawing the panchnama of the scene of offence, collecting necessary samples for Forensic Examination etc. 22 persons had been arrested, details of which are as under.

Thereafter details of the 22 arrested persons are given. It is further stated that charge sheet had been filed against the 12 persons after detailed investigation. The deponent has then referred to the names of persons who have suffered injuries and absconding accused. It is thereafter stated thus:

It is respectfully submitted that all efforts have been made to investigate into the incident in detail. The Police authorities are conscious about the gravity of the incident and have diligently investigated into the said FIR. It is denied that the investigation is in any way initiated (sic) by malafide.

Mr. J.P. Raol, Police Inspector, Local Crime Branch has also filed an affidavit-in-reply dated 29th June, 2009 in Special Criminal Application No. 1675 of 2008. As the contents thereof are referred to in the submissions made by the learned Additional Public Prosecutor, to avoid prolixity the same are not reproduced at this stage.

Mr. N.D. Nanavaty, learned senior advocate appearing with Mr. B.M. Mangukiya, learned advocate for the petitioners submitted that in the first place two first information reports have been registered in respect of the same transaction which is not permissible in law. Secondly the investigation carried out by the investigating agency is partial and biased, inasmuch as the same is directed in favour of one community and against the other. Elaborating on his submissions, attention was invited to the contents of the first information report registered vide Bavla Police Station I-C.R. No. 154 of 2008 to submit that the said first information report covers the entire incident which lasted till 3:30 p.m. and also records that one injured witness Ajitbhai Prahladbhai had died during the incident. The investigation in connection with the said first information report was entrusted to the Circle Police Inspector, Dholka and the investigation was set in motion. It was submitted that despite the fact that an exhaustive first information report had already been lodged and machinery for investigation of the said offence had already been set in motion, a second first information report being Bavla Police Station I-C.R. No. 155 of 2008 came to be recorded at Long Life Hospital at Paldi, Ahmedabad, at the instance of one Popatbhai Babubhai Koli, naming 18 persons as accused along with a group of unidentified persons. It was submitted that the first informant of C.R. No. I-155 of 2008 had sustained injuries during the course of the incident in respect of which C.R. No. I-154 of 2008 had come to be registered and was an accused since he was an injured person and a member of the crowd. It was contended that in the circumstances, the version of the said first informant would be a statement of an accused as this was not a cross-case wherein opposite parties had filed complaints against one another. By the time he had lodged the first information report, the informant of C.R. No. I-155 of 2008 was to be arrested, as he was described as an accused in C.R. No. I-154 of 2008.

10.1 It was argued that there was a well-planned strategy to implicate one community and to dilute the offence qua the other community. It was submitted that the filing of the second first information report, that is, C.R. No. I-155 of 2008 arising out of the same incident was the first strategy. Referring to the report dated 15th July, 2008 made by the Investigating Officer to the Judicial Magistrate First Class, Dholka, it was submitted that consequent to the strategy, within a week of lodging of the first information report, a report was submitted by the police to drop Section 302 IPC from the first information report being C.R. No. I-154 of 2008 and that not only Section 302 of the Indian Penal Code but subsequently, even Sections 307 and 436 of the Indian Penal Code have been deleted in connection with the said first information report. It was urged that the first information report registered vide C.R. No. I-154 of 2008 clearly shows that persons belonging to the Koli community were aggressors and had attacked the Bharwad community. The place of incident is where the Bharwads reside and not only residential premises of Bharwads were targeted, kerosene was poured on young minor daughters of Bharwads. Bharwads were shut inside their houses by bolting the doors from outside and their houses were set on fire and they were sought to be roasted alive. However, with a view to lessen the offence alleged against persons belonging to the Koli community, attempts have been made to bifurcate the said incident into two incidents. Serious offences like Sections 302, 307 and 436 IPC have been deleted from the first information report being C.R. No. I-154 of 2008 wherein the first informant of C.R. No. I-155 of 2008 and other persons belonging to his community are also accused. Inviting attention to the averments made in the memo of petition as regards the nature of investigation carried out by the Investigating Officer as well as to the affidavit-in-reply filed by the Investigating Officer, it was pointed out that the said averments remain uncontroverted. It was submitted that a totally lop-sided investigation has been carried out with a view to shield persons belonging to one community and implicate persons belonging to the other community. It was submitted that despite the fact that the informant of C.R. No. I-155 of 2008 is an accused in C.R. No. I-154 of 2008, he is shown as an absconding accused in the charge sheet. That only persons belonging to the Bharwad community have been arrested and despite the fact that the persons belonging to the Koli Patel community are very much present and assisting in the investigation against the petitioners, they are shown as absconding accused, which speaks volumes about the manner in which the investigation has been carried out.

10.2 It was submitted that no separate statements have been recorded in connection with both the first information reports and that the place of incident in both the first information reports is the same. It was submitted that the say of the respondent State authorities that the incident had taken place at different places and at different times so as to occasion registering of separate offences is not supported by the record. It was further submitted that the victims in both the first information reports are the same and that the accused of C.R. No. I-154 of 2008 had lodged the first information report numbered as C.R. No. I-155 of 2008 and the same was recorded by the Police Inspector of Sarkhej Police Station who had no jurisdiction over the place where the alleged incident had taken place. Inviting attention to the record of the case, it was pointed out that the inquest panchnama in respect of deceased Ajitbhai was drawn in C.R. No. I-154 of 2008 and the body was forwarded for post-mortem prior to lodging of C.R. No. I-155 of 2008 and that the papers of the post-mortem report form part of the record of C.R. No. I-154 of 2008. It was pointed out that the inquest panchnamas of deceased Ajitbhai Prahladbhai as well as deceased Rameshbhai Vashrambhai form part of the investigation of C.R. No. I-154 of 2008 whereas inquest panchnama of deceased Manubhai Manabhai forms part of investigation of C.R. No. I-155 of 2008. Referring to the autopsy report of deceased Ajitbhai Prahladbhai Koli, it was submitted that the report clearly falsifies the prosecution story that the death of the deceased was caused due to injuries inflicted by the accused. Referring to the panchnama of the scene of offence which has been recorded in C.R. No. I-154 of 2008, it was pointed out that the panchnama refers to the property of the Bharwads which had been set on fire. The very same panchnama also refers to the road from Dhedhal to Vasna as well as the vehicles viz. one Chhakda, a blue coloured Hero Honda Motor Cycle bearing No. GJ.1.GJ 722, a black coloured Hero Honda bearing No. GJ.1.GJ 6662 lying in the waters of the pond and one motor-cycle bearing No. GJ.1.BS 925 as well as a tractor lying in a water hole near the road. It was pointed out that the same panchnama also refers to blood stains found at different places. The panchnama also says that the incident has started near Bavla Dhedhal Chokdi and includes samples collected at the said place. It was submitted that the panchnama clearly indicates that even according to the investigating agency all the incidents form part of the same transaction starting from the incident at Dhedhal Chokdi and the panchnama itself encompasses the entire area where the incident is alleged to have taken place. The learned Counsel had also drawn the attention of the Court to the scene of incident panchnama drawn in respect of C.R. No. I-155/08 which also refers to the Dhedhal Vasna road and vehicles lying in the pond and water hole to submit that the scene of offence indicated in the said panchnama is already covered under the panchnama of the scene of offence drawn in C.R. No. I-154 of 2008. It was, accordingly, contended that it is amply clear that both the first information reports arise out of the same incident.

10.3 Next it was pointed out that twelve persons belonging to the ''Bharwad'' community have been shown as accused in both the first information reports and the production report was submitted on 15th July, 2008 and deletion of the above referred offences from C.R. No. I-154/2008 was also sought for on the same day, that is, 15th July, 2008. Attention was invited to the production report to submit that in the said production report, in connection with C.R. No. I-154 of 2008, the provisions of Section 302 of the Indian Penal Code had been deleted. Attention was invited to the charge-sheet filed in connection with C.R. No. I-154 of 2008 on 29th March, 2009 to point out the names of the accused who are shown to be absconding. Attention was drawn to the remarks attached with the charge-sheet wherein the Investigating Officer has stated that the arrested accused belong to the Bharwad community whereas the accused belonging to the Koli community have set the houses of persons belonging to the Bharwad community on fire and have tried to burn them alive hence, the charges u/s 307 and 436 IPC don''t stand qua the arrested accused, hence the said sections are not mentioned in the charge-sheet. As and when the accused belonging to the Koli Patel community are arrested they would be charged under Sections 307, 436 IPC and Section 3 and 7 of the Prevention of Damage to Public Property Act, 1984. It is also stated in the note below the charge sheet that for the said incident another first information report was also recorded as C.R. No. I-155 of 2008. That since the informant was not present and was taking treatment at Ahmedabad the first information report came to be recorded at the instance of the Police Sub-Inspector on behalf of the Government. It was pointed out that the charge-sheet filed by the Investigating Officer itself says that there are two first information reports registered in respect of the same incident. It was urged that having taken note of the incident wherein assault and arson has taken place and injuries have been sustained, the second FIR was not maintainable at the instance of the accused of the first FIR. It was submitted that registration of a second first information report in connection with the same incident is not permissible, in view of the law laid down by the Apex Court in T.T. Antony Vs. State of Kerala and Others, The learned senior counsel took the Court through the entire judgment and submitted that in view of the law laid down in the said decision there can be no second first information report and no fresh investigation in respect of every subsequent information in respect of the same cognizable offence can be registered as a first information report u/s 154 of the Code. All subsequent information would be covered by Section 162 of the Code. The officer-in-charge of the Police Station has to investigate not only the cognizable offence registered in the first information report, but connected offences found to be committed in connection with the same incident and occurrence and file one or more reports as provided u/s 173 of the Code. It was urged that every individual cannot file a first information report in respect of the same incident. Referring to the decision of the Supreme Court in Upkar Singh v. Ved Prakash and Ors. (2004) 13 SCC 292, it was submitted that whereas a second FIR in connection with the same incident is not permissible, a counter-complaint is not prohibited. It was submitted that if both the first information reports and charge-sheets are compared, the list of witnesses and statements of witnesses are the same; the occurrence is the same; the transaction is the same; groups of two communities had committed different offences against each other and the police had to intervene; there was firing, lathi-charge and lobbing of teargas shells to disperse the crowd and thereafter, the first information report being C.R. No. I-154 of 2008 came to be registered. It was urged that C.R. No. I-155 of 2008 is neither a rival version nor a counter complaint, hence the police authorities ought not to have registered a second FIR in connection with the same offence and as such the second FIR and all proceedings emanating there from deserve to be quashed.

10.4 Next it was submitted that since the respondent ''Minister belongs to the Koli community, at his instance, the second first information report being C.R. No. I-155 of 2008 came to be registered by summoning the Police Inspector of Sarkhej Police Station, despite the fact that the incident had taken place within the territory of Bavla Police Station and was subsequently forwarded to the Bavla Police Station. Inviting attention to the affidavit filed by the concerned Minister, it was pointed out that it is an admitted position that the Minister had gone to the hospital. It was submitted that taking an overall view of the matter, the registration of the second first information report may or may not be malafide, however, the same was not legally permissible. It was submitted that the police had no authority to register another FIR and submit another charge-sheet in connection with the same offence. The whole investigation was without jurisdiction and the Court had therefore, erred in taking cognizance of offences which were subject matter of investigation in another FIR. It was accordingly urged that the second first information report registered vide Bavla Police Station I-C.R. No. 155 of 2008 be quashed and investigation carried out in that offence also be quashed with a rider as in T.T. Antony''s case by directing the respondents to act in accordance with law.

On the other hand, Mr. P.M. Thakkar, learned senior advocate with Mr. Sunil C. Patel, learned advocate for the respondent No. 2 ''first informant of the first information report registered vide C.R. No. I-155 of 2008 has vehemently opposed the application. It was submitted that C.R. No. I-155 of 2008 was lodged in connection with the incident that had taken place prior in point of time whereas the incident in connection with which C.R. No. I-154 of 2008 came to be lodged had taken place subsequently. However, as the injured of the first incident had been admitted to the hospital, the FIR in connection with the first incident came to be registered after the FIR in connection with the subsequent incident. It was submitted that during the course of the first incident, three persons belonging to one community have died and 26 persons again belonging to the same community have been injured whereas there is no death or injury so far as the members of the community to which the petitioners belong. It was submitted that though the first information report registered vide C.R. No. I-154 of 2008 indicates that the mob of ''Kolis'' had tried to burn several persons alive in their houses, nobody had actually been burnt alive and only some police personnel have sustained injuries. It was submitted that the two situations in respect of which the two first information reports have been registered disclose two separate and distinct offences. Both the first information reports refer to different places where the offences have taken place and are filed by two different complainants and the same have not been filed against the same accused. Therefore, there is nothing in common except the fact that in case of the incident that occurred subsequently, the police were at the spot and hence, the first information report was recorded first. It was pointed out that the first information report registered vide C.R. No. I-155 of 2008 is by an injured eye-witness of a case of murder. However, because the police were short of hands and the mob had gathered, as disclosed in C.R. No. I-154 of 2008, the mob had to be controlled first. Therefore, the local police at Dhedhal was called and ultimately, the second first information report was recorded late on the same day when the witness was in hospital. Inviting attention to the contents of both the first information reports, it was pointed out that the incident in respect of which C.R. No. I-154 of 2008 came to be lodged, is reported to have taken place between 09:30 hours to 15:00 hours and the first informant is one Mr. M.N. Pandya whereas the incident in relation to which C.R. No. I-155 of 2008 came to be lodged is reported to have taken place at 09.15 a.m. and the informant is one Babubhai Popatbhai Koli Patel. It was submitted that the timings of the incident in relation to which the first information reports have been filed are different; the accused are also different inasmuch as in C.R. No. I-154 of 2008, the accused are unknown and the incident is stated to have taken place at Dhedhal Chowkdi Village, 5 kms. West Dhedhal Beat which is at a distance from the police station whereas in case of C.R. No. I-155 of 2008, there are 18 named accused, the place of incident is Mouje Dhedhal Village near the pond, 5 kms. 3 Dhedhal Beat. It was submitted that one incident took place near the pond, whereas the other took place in the village. Referring to the contents of the first information report registered vide C.R. No. I-154 of 2008, it was pointed out that the informant reached the spot at 10:00 hours, after the incident was over and that when the informant reached there, the crowd had dispersed. That the first incident took place at Dhedhal Chowkdi whereas the second incident took place at Dhedhal village. People of both the communities were in the crowd with weapons attacking each other. Inviting attention to the contents of the first information report registered vide C.R. No. I-155 of 2008, it was pointed out that the same refers to the incident of the previous day at Dhedhal Chowkdi and the offence which took place at 9:15 am and is lodged at 22:35 hours on the date of the incident. It was submitted that insofar as the first information report being C.R. No. I-154 of 2008 is concerned, the people of the two communities were trying to attack each other and that the police could prevent serious damage. It was submitted that the true fact is that the incident of C.R. No. I-155 of 2008 was the cause of the incident of C.R. No. I-154 of 2008. It was urged that both the FIRs having been filed in respect of different incidents which had taken place at different times and at different places, no case has been made out for quashing the second FIR.

11.1 The learned senior advocate referred to the judgment of the Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), to submit that what is prohibited is the registration of two first information reports out of the same cause of action whereas a rival version is neither prevented nor prohibited. It was submitted that the decision of the Supreme Court in T.T. Antony (supra) is on the special facts of the case. Inviting attention to the decision of the Supreme Court in T.T. Antony, it was pointed out that if registration of a second first information report was a problem, in T.T. Antony itself, there were two first information reports, viz., 353 of 1994 and 354 of 1994. It was submitted that in T.T. Antony, a first information report being 268 of 1997 was registered after a lapse of three years which, in fact, was a third first information report and sought to change the entire role. Whereas in the facts of the present case, the first information report registered vide C.R. No. I-154 of 2008 is not a first information report of the incident in relation to which C.R. No. I-155 of 2008 came to be registered. It was urged that the first information reports registered vide C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008 are in respect of two different places and two different incidents between two sets of people; that C.R. No. I-155 of 2008 was in connection with something happening on the Highway at 9 o''clock in the morning and pursuant to something that happened on the previous evening and had its roots in the previous day''s incident. C.R. No. I-154 of 2008 which is a clash between two communities is, in fact, a backlash of C.R. No. I-155 of 2008. Next, it was submitted that the first information report being C.R. No. I-154 of 2008 is in general terms whereas the first information report being C.R. No. I-155 of 2008 is in specific terms given by an injured eye-witness giving details about the incident. It was contended that in T.T. Antony (supra), the Supreme Court has not laid down any hard and fast rule that in no case, two first information reports can be registered in connection with the same incident. Referring to the decision in Upkar Singh''s case (supra), it was submitted that it has been held in the said decision that the Supreme Court in T.T. Antony has not excluded registration of a complaint in the nature of a counter-case from the purview of the Code; what has been held is that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code. However, the prohibition does not apply to a counter-complaint by the accused of the first complaint or on his behalf alleging a different version of the same incident. It was submitted that assuming that both the first information reports arise out of the same incident, even then they are rival versions of the same incident and as such, there is no prohibition against registering a first information report based on a different version of the same incident. It was pointed out that the first information report registered vide C.R. No. I-155 of 2008 was lodged by an aggrieved person who was himself injured and whose cousin had been killed; that he was travelling in the same car with the deceased Manubhai Manabhai and that the death of Manubhai was not referred to in C.R. No. I-154 of 2008. It was contended that in the first information report being C.R. No. I-154 of 2008, Section 302 of the Indian Penal Code has been deleted and as such, the said first information report relates only to rioting and other connected offences, hence, there was no impediment in registering the first information report vide C.R. No. I-155 of 2008. It was further submitted that the first information report registered vide C.R. No. I-154 of 2008 indicates that persons from the ''Koli Patel'' community were aggressors which would be explained from the fact that the incident of morning led to the subsequent incident in connection with which C.R. No. I-154 of 2008 came to be lodged. It was submitted that C.R. No. I-155 of 2008 has been filed by an eye-witness who belongs to the community which has suffered death, injuries and casualties and he has disclosed the very initiation of the offence whereas C.R. No. I-154 of 2008 has been lodged by a police officer who had come later at the scene of incident and is not an eye-witness. It was submitted that a first information report can be quashed only if it results in miscarriage of justice whereas in the facts of the present case, no case has been made out for quashing the alleged second first information report being C.R. No. I-155 of 2008.

11.2 Next, it was submitted that it is the petitioners'' case that they are being charged in two first information reports and would, therefore, have to face two Sessions Cases and two convictions and would, therefore, be punished twice for the same offence. It was contended that insofar as deceased Manabhai and the complainant''s injuries are concerned, it was necessary to lodge a first information report in that regard. Insofar as deceased Rameshbhai is concerned, there is no reference to him in either of the first information reports. It was only the reference to deceased Ajitbhai in both the first information reports which was required to be remedied, which has already been remedied by the Investigating Officer and report has been filed for deletion of Section 302 of the Indian Penal Code from C.R. No. I-154 of 2008. Hence, the petitioners are not going to be tried for the offence u/s 302 in respect of the first information report registered vide C.R. No. I-154 of 2008 as the same has been deleted. In the circumstances, there is no question of double jeopardy as Section 302 has been deleted in C.R. No. I-154 of 2008. It was submitted that merely because there are lacunas in the investigation would not be a ground for quashing C.R. No. I-155 of 2008. It was urged that at the stage when the petition is being heard the case in respect of C.R. No. I-155 of 2008 has already been committed for trial wherein the accused have an opportunity to seek discharge. It was further pointed out that many of the petitioners are absconding accused against whom proceedings u/s 70 of the Code have been initiated; hence, this Court ought not to entertain petitions at the instance of the absconding accused. It was argued that if there were group clashes, how is it that only one side has suffered casualties and that there is no injury or death on the part of the other community.

11.3 The learned senior advocate placed reliance upon the decision of the Apex Court in Ram Lal Narang (supra) to submit that it is permissible to lodge two first information reports in connection with the same incident in case where there are two conspiracies. It was submitted that commonality of accused would not vitiate the first information report. Besides, fourteen of the accused are uncommon. Referring to the decision of the Supreme Court in Kari Choudhary Vs. Most. Sita Devi and Others, it was submitted that in the facts of the said case, the second version came to be revealed during the course of investigation whereas in the present case, the second first information report is the version of the first informant who is an eye-witness of the murder, of an incident which had taken place at a different time and at a different place. It was further submitted that the first information report registered vide C.R. No. I-154 of 2008 makes no reference to the incident witnessed by the first informant. Referring to the decision of the Supreme Court in Nirmal Singh Kahlon Vs. State of Punjab and Others, it was submitted that even in respect of the same incident, rival versions are permissible. Attention was invited to the fact that in the said decision wherein a second first information report had been registered pursuant to a direction by the High Court to investigate the offence, the Supreme Court found that the second first information report would be maintainable not only because there were two different versions and new discovery was made on factual findings but also because the second first information report lodged by the C.B.I. was on a wider canvass involving conspiracy of large number of persons. It was accordingly submitted that it is always permissible to lodge a second first information report when there is a different version. Attention was further invited to the fact that in the said case wherein a charge-sheet had been filed on the basis of the first FIR and two witnesses had already been examined, the Supreme Court directed the learned Trial Judge to segregate that portion of the trial which had any bearing with the scam relating to the appointment of the Panchayat Secretaries which was subject matter of the second first information report. It was accordingly submitted that in the facts of the present case, the Investigating Officer had already deleted Section 302 of the Indian Penal Code from the first FIR and as such, there is neither any illegality nor any irregularity in lodging the second first information report. Reliance was placed upon the decision of the Apex Court in Bank of Rajasthan v. Keshav Bangur and Anr. (2007) 13 SCC 145, wherein it appears that pursuant to an order of the High Court, the C.B.I. had registered 16 cases and filed charge-sheets in respect of the same. Subsequently, a closure report was filed in connection with first information report No. 138 of 2001 and the same came to be accepted by the learned Sub-Divisional Judicial Magistrate, Alipore, Calcutta, as the documents of the said case had been transferred to C.B.I. The 16 first information reports came to be challenged on the ground that when a first information report is already pending, registration of a series of first information reports in respect of the same cognizable offence would be a gross abuse of the process of the court. The Supreme Court in the facts of the said case, applying the test laid down by the Apex Court in Kari Choudhary (supra), held that since investigation had been done by C.B.I. (common agency), the report submitted by it to the Court would be placed before the concerned Judge and it would be for that Court to decide whether the aspects covered in first information report No. 138 of 2001 stand covered by the report of C.B.I. in the said 16 first information reports or whether first information report No. 138 of 2001 deals with some aspect which is left out by C.B.I. in the said 16 cases. Accordingly, it would decide whether the 16 cases cover all aspects including those falling under first information report No. 138 of 2001 or whether first information report No. 138 of 2001 has some aspects which do not fall in the 16 cases and, accordingly, it would decide whether to accept the report submitted by C.B.I. pursuant to the order of the Supreme Court. Similarly, it would be for that Court to decide whether the alleged siphoning off took place under the same transaction or under separate transactions. The Supreme Court directed that all the said cases shall be tried and disposed of by the same learned Judge in accordance with law. It was submitted that the operative part of the last two decisions gives a guideline to the Court as to what course of action should be adopted.

11.4 Next, it was submitted that during the course of investigation in connection with C.R. No. I-154 of 2008, no test identification parade has been conducted and that the police witnesses who are injured have said that they are not in a position to identify anyone. It was further submitted that the statement of the first informant''s son recorded in C.R. No. I-155 of 2008 has also been kept in the investigation papers of C.R. No. I-154 of 2008 and it is not as if his statement has been recorded in connection with C.R. No. I-154 of 2008. It was pointed out that in the entire charge-sheet of C.R. No. I-154 of 2008 there are no witnesses to the incidents of rioting, whereas in C.R. No. I-155 of 2008, there are several eye-witnesses in respect of the three deaths and 26 injured. It was contended that there are no common factors in the two first information reports so as to indicate that both the first information reports arise out of the same transaction, hence there being no merit in the petitions the same are required to be dismissed.

Ms. M.L. Shah, learned Additional Public Prosecutor, also vehemently opposed the petitions/applications. Insofar as the questions of law are concerned, the learned Additional Public Prosecutor has reiterated and adopted the submissions advanced on behalf of the respondent No. 2. On facts, relying upon the affidavit-in-reply filed by Mr. J.P. Raol, Police Inspector, Local Crime Branch, Ahmedabad Rural, it was submitted that three persons have lost their lives in the incident of C.R. No. I-155 of 2008 and that the first information reports registered vide C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008 are in connection with distinct offences. The second incident is more in the nature of stone-pelting and the first information report registered in connection therewith is a generic complaint by the P.S.I. According to the learned Additional Public Prosecutor, insofar as the incident in respect of which C.R. No. I-155 of 2008 came to be registered, the cause for the said incident was an altercation that had taken place between the ''Bharwads'' and the ''Koli Patels'' on 07th July, 2008 at 6.30 p.m. on account of the ''Bharwads'' objecting to the plying of rickshaws by the members of the ''Koli Patel'' community; that a day later, on 08th July, 2008, approximately at 09:00 hours when the first informant Babubhai and his son were travelling in a Maruti Alto Car along with his cousin near Ramgadh Bapa temple at the outskirts of village Dhedhal, a tractor and a Chhakda rickshaw plying before them came to intercepted by 10 to 15 Bharwads armed with dharias, sticks and tamanchas. The mob beat up Vadibhai Pakhabhai and Amubhai who were riding the said vehicle and they were shouting, abusing and objecting to passing of the vehicles on the said road. At that time, a group of ''Bharwads'' armed with rifles, sticks, tamanchas etc. arrived in cars from Bavla village. In the assault between Bharwads and Koli Patels, approximately 15 to 20 persons were seriously injured and three of them lost their lives. All the injured were rushed to various hospitals. On receiving information regarding the incident, the Superintendent of Police directed the P.I., Sarkhej Police Station - Mr. G.D. Trivedi to record the statements of the injured and file the complaint. Since the entire police force at Bavla was engaged in maintaining law and order at the village, the P.I., Sarkhej Police Station rushed to the Long Life Hospital where 13 to 14 injured witnesses were taking treatment and accordingly, on the basis of the statement recorded by Mr. G.D. Trivedi, P.I., Sarkhej Police Station, a complaint came to be registered at 10.30 p.m. on 08th July, 2008 as C.R. No. I-155 of 2008 for the offences punishable under Sections 147, 148, 149, 302, 307, 403, 427, 324, 323, 325, 34 and 120B of the Indian Penal Code, 1860 and Sections 25(1)(a) and (b) and 27 of the Arms Act, 1959 and Section 135 of the Bombay Police Act, 1951.

12.1 As regards the incident in connection with which C.R. No. I-154 of 2008 has been registered, it is the case of the prosecution that whilst Mr. M.N. Pandya, P.S.I, Bavla Police Station was patrolling in the Bavla town, he received a message from the Police Station Officer at 10:00 a.m. to the effect that some altercation had taken place between two communities at Dhedhal Crossroads. On receiving the said information, he returned to the Police Station and along with other police personnel, rushed to the said spot. Mr. M.N. Pandya along with other police personnel managed to disperse the crowd there. Thereafter, he received information that there is another clash between two communities in the Dhedhal village. Immediately, he contacted the control room as well as the Deputy Superintendent of Police of Dholka for further police support and thereafter rushed to the spot where both the communities armed with sticks, dharias, swords etc. were attacking each other. The police had to resort to lobbing teargas shells as well as lathi-charge. Several rounds were fired in order to disperse the crowd and it was a clash between 2000 to 3000 persons. During this clash, several persons were injured and three houses of the Bharwad community were set on fire. For the incident which occurred at Dhedhal village, an offence came to be registered at 5.30 p.m. on 08th July, 2008 at Bavla Police Station for the offences punishable under Sections 147, 148, 149, 302, 307, 332, 333, 436, 427 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act, 1951 by Mr. M.N. Pandya, P.S.I., Bavla. which came to be registered as C.R. No. I-154 of 2008.

12.2 In the background of the aforesaid facts, the learned Additional Public Prosecutor submitted that the gravamen of the charges in connection with both the first information reports is distinct and separate. The learned Additional Public Prosecutor has also placed on record a communication dated 02nd September, 2009 of Shri N.G. Saiyed, Circle Police Inspector, Dholka wherein it is stated that in connection with first information report registered vide C.R. No. I-154 of 2008, charge-sheet had been submitted on 29th March, 2009 against twelve accused. However, in connection with the said offence, since no evidence has been obtained, after discussion with the Dy.S.P., Dholka, the Dy.S.P. has consented to deletion of the offences punishable u/s 147, 148, 149, 337 and 427 of the Indian Penal Code and Sections 3 and 7 of the Prevention of Damage to Public Property Act, 1984 and Section 135 of the Bombay Police Act by filing appropriate report u/s 169 of the Code. It was accordingly submitted that in respect of the twelve accused of C.R. No. I-154 of 2008, against whom charge-sheet has been filed, there is no material against them; hence, the police authorities would be filing a report u/s 169 against them.

12.3 Next, it was submitted that assuming that both the first information reports are in respect of the same incident, even then they are rival versions of the same incident; that in respect of one incident, the police personnel were not eye-witnesses, therefore, the version would differ. Hence, there is no infirmity in the action of the police authorities in registering a second first information report and carrying out investigation in connection with the same. Reliance was placed upon a decision of the Supreme Court in State of M.P. v. Ramesh C. Sharma (2005) 12 SCC 628, for the proposition that a defect or illegality in investigation, howsoever serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was further submitted that in respect of separate incidents, separate first information reports had been registered and charge-sheets have already been filed against them. Hence, it is always open for the petitioners to file appropriate application for discharge. It was submitted that the challenge to the second FIR is by way of an amendment which has been made rather belated and that at this belated stage the Court may not entertain the claim for quashing the second FIR.

12.4 Attention of the Court was also invited to the fact that insofar as the investigation in connection with the first information report being C.R. No. I-155 of 2008 is concerned, initially the investigation was carried out by one Mr. N.G. Saiyed, Circle Police Inspector, Dholka, and charge sheet came to be submitted by him on 10.10.2008. However, thereafter, on 18.4.2009, the investigation came to be handed over to the Local Crime Branch. On taking over the investigation and examining the investigation papers, the Investigating Officer found several lapses and accordingly submitted a detailed report to the Superintendent of Police, Ahmedabad (Rural).

Mr. Y.N. Oza, learned senior advocate with Mr. Tejas Barot, learned advocate appears for respondent No. 5 - Minister of State for Animal Husbandry and Fisheries, Gujarat State, and invited attention to the affidavit of the concerned Minister in Special Criminal Application No. 1675 of 2008 whereby the said respondent has denied the allegations made in the petition. It was submitted that as several persons were injured and some of the persons had also lost their lives, in order to console them and to give them moral support, which they needed at that point of time, he had paid a visit to the hospital; that the said visit was not paid to prompt any person, much less the complainant - Babubhai Popatbhai Koli Patel to lodge the first information report bearing C.R. No. I-155 of 2008 against the persons accused therein. It was further submitted that the said respondent had played no role whatsoever in the matter of investigation of either C.R. No. I-154 of 2008 or C.R. No. I-155 of 2008 and has not, in any manner, influenced the investigation in connection with either of the first information reports by intervening in the investigation at any point of time. It was submitted that the allegations have been made in the petition only with a view to malign the said respondent as he was a sitting Minister of the Fisheries and Animal Husbandry.

In rejoinder, Mr. N.D. Nanavaty, learned senior advocate for the petitioners has invited the attention of the Court to the contents of the first information report registered vide C.R. No. I-154 of 2008 and more particularly to the last paragraph thereof wherein it is stated that the mobs with a view to further the conspiracy hatched by them, had come together and formed unlawful assembly and armed with deadly weapons, attacked the police as well as with a view to kill the persons, set their houses on fire as well as caused the death of Ajitbhai Prahladbhai Koli Patel and injured police personnel. It was submitted that the informant had lodged the complaint for the offences punishable under Sections 147, 148, 149, 302, 307, 436, 333, 332 and 427 of the Indian Penal Code and Section 135 of the Bombay Police Act against those persons who were injured during the course of police firing, lathi-charge as well as on account of the clash of the mobs as well as against the other 3000 to 4000 unknown people. The said first information report is a report of the entire incident and takes within its fold all the incidents that had taken place on 08th July, 2008 including the death of Ajitbhai Prahladbhai Koli Patel. Inviting attention to the decision of the Supreme Court in T.T. Antony (supra) as well as to the other decisions which had been referred to by Mr. P.M. Thakkar, learned Counsel for the respondent No. 2, it was submitted that it may be permissible to register a first information report in connection with a larger conspiracy in a case where earlier a first information report was lodged in connection with a smaller conspiracy. However, in the present case, the first information report lodged in connection with the larger incident was first in point of time and that those who were being treated, succumbed to injuries later on after the lodging of the first information report, but the offence is the same. It was submitted that when all the offences are covered in one first information report wherein investigation has proceeded, all subsequent happenings like death of Manubhai and Rameshbhai cannot be considered as a distinct and different offence, as submitted on behalf of the State. It was, accordingly, submitted that the basic contentions raised on behalf of the State are not well-founded. Referring to the notes of the Investigating Officer in the charge-sheet wherein it is stated that though offence u/s 302 of the Indian Penal Code etc. had occurred at a prior point of time for which C.R. No. I-155 of 2008 was registered, since the said complainant of the said C.R. was taking treatment at a hospital at Ahmedabad, C.R. No. I-154 of 2008 came to be registered by the State at a prior point of time, it was submitted that the very concept of first information report is that it is a report based on the first information in respect of an offence. In the circumstances, when the Circle Police Inspector gathered the information including the death of Ajitbhai, he was obliged to record the first information report. It was submitted that Section 154 of the Code mandates that when a police officer receives information relating to the commission of a cognizable offence, he shall record a first information report. He does not have to wait till a private party lodges a first information report. It was accordingly submitted that the submissions made on behalf of the State have no merit.

14.1 Dealing with the submissions advanced by Mr. P.M. Thakkar, Mr. N.D. Nanavaty submitted that what has to be examined is as to whether the second first information report is in relation to a cross-case or a distinct and separate incident. It was submitted that in a cross-case, the basic requirement is that the transaction should be the same. It was urged that it is the case of the respondents that both the first information reports pertain to separate offences and that the place of incident is not the same whereas in fact both the first information reports are merely different versions of the same offence. It was contended that the narration of the incident may be different from person to person and that merely because the story-telling skill differs from person to person, the same will not convert the offence registered vide C.R. No. I-155 of 2008 into a different offence. It was pointed out that Manubhai died 10 to 15 minutes before the lodging of the first information report registered vide C.R. No. I-155 of 2008 and that he had also sustained injuries in the same incident.

14.2 It was submitted that the facts of the present case are distinct from the facts of Upkar Singh''s case (supra) inasmuch as there is no counter complaint. It was further submitted that in the present case, a wider canvass is sought to be narrowed down to a narrow canvass which was not the case in any of the decisions on which reliance is placed upon on behalf of the respondent No. 2. It was further submitted that a close perusal of both the first information reports clearly shows that they refer to the same incident. It was contended that if a rival person who has sustained injuries can file a separate first information report, then every injured person will file a separate first information report. It was submitted that, in effect and substance, both the first information reports being C.R. No. I-154 of 2008 and C.R. No. I-155 of 2008 refer to the same incident and that the police agency had also accepted the same but for some reason best known to them, they have registered a second first information report and carried out investigation pursuant thereto, which ought not to have happened. It was further submitted that insofar as the investigation in connection with C.R. No. I-154 of 2008 is concerned, there is total inaction on the part of the investigating agency whereas in connection with C.R. No. I-155 of 2008, there is over-action. It was submitted that initially though investigation was carried out in both the first information reports by the same Investigating Officer, after submission of charge-sheet, the investigation in respect of C.R. No. I-155 of 2008 has been handed over to the L.C.B. Police Station. It was submitted that the first information report registered vide C.R. No. I-154 of 2008 covers the offence as a whole wherein an unknown crowd is the accused. Those who have sustained injuries at the hands of the police or during the scuffle are also accused. It was submitted that C.R. No. I-154 of 2008 encompasses all of them and that the informant is conscious that all those who are present and have sustained injuries are accused and interrogating them would indicate the name of the accused. It was submitted that if C.R. No. I-155 of 2008 is set aside, the offence would not, in any manner be diluted. All the accused would continue to be accused as quashing of C.R. No. I-155 of 2008 does not mean that charges are to be quashed.

In the background of the facts and contentions noted hereinabove it is apparent that the basic submission on the part of the petitioners was that both the FIRs have been registered in connection with the same offences, which form part of the same transaction. The sequitur was that the investigation into and taking cognizance of the second case were without jurisdiction. The other contention urged on behalf of the petitioners is that as on the face of it the investigation has not been fair and impartial and is also vitiated by mala fides and irregularities, the investigation be handed over to an independent agency.

In the present case as serious allegations have been made as regards the nature of the investigation carried out in respect of both the first information reports, which according to the petitioners has been made to favour members of one community and to implicate the members of the other community, this Court has minutely examined the record of the case to examine the veracity of the allegations made by the petitioners.

Considering the rival submissions advanced by the learned Counsel for the respective parties, in the context of the first contention raised by the petitioners, regarding the maintainability of the second FIR, the questions that arise for determination are: (i) whether in fact both the FIRs arise out of the same incident or form part of the same transaction? (ii) If the answer to the first question is in the affirmative, whether the second FIR is in the nature of a counter complaint so as to fall within the ratio of the decision in Upkar Singh''s case? Or whether the same is a rival version as envisaged in Kari Choudhary''s case? (iii) If the second FIR is neither in the nature of a counter complaint nor a rival version, whether in the light of the decision of the Supreme Court in T.T. Antony and the other decisions cited at the bar, the same is maintainable?

For the purpose of determining as to whether both the first information reports arise out of the same incident or form part of the same transaction, at the outset it would be germane to compare the FIRs in the two cases.

18.1 Insofar as the first information report registered vide Bavla Police Station C.R. No. I-154 of 2008 is concerned the same was lodged on 8.7.2008 at 17:30 hours in respect of offences that are alleged to have been committed on 8.7.2008 between 9:30 to 15:00 hours. The place of offence is stated to be at Dhedhal Chokdi village west 5 Km. Dhedhal Beat and the accused are a mob of 3 to 4 thousand people. The first informant is one Mr. M.N. Pandya, Police Sub-Inspector, Bavla Police Station, and the offences alleged are under 147, 148, 149, 302, 307, 436, 333, 332 and 427 IPC and Section 135 of the Bombay Police Act. According to the informant he was patrolling in Bavla Town when Police Station officer, H. C. Kanaiyalal, informed him on telephone that an altercation had taken place between Koli Patels and Bharwads at Dhedhal Chokdi (cross-roads). Hence he came to the Police Station and took the police personnel named in the FIR with him and upon reaching Dhedhal Chokdi, the crowd had dispersed. Thereafter, they came to know that the clash between the Koli Patels and Bharwads was continuing at Dhedhal village. Hence, he immediately asked the Bavla Police officer to inform the Control room and the Dy. S. P., Dholka and call for additional police forces and went to Dhedhal village. The groups of Koli Patels and Bharwads were armed with weapons like sticks, dharias, spears and spades and were attacking each other. He tried to placate the persons in the mobs of both sides. In the meanwhile local as well as external police forces arrived. Despite trying to pacify the mobs, they were not ready and willing to understand. He gave several warnings to the mobs to disperse; but as the mobs refused to do so they had to resort to firing gas guns and lobbing tear gas shells. However as the mob did not disperse and became more violent and started pelting stones at the police personnel they had to resort to lathi-charge and from the mob, the Koli Patels had surrounded the Bharwad vaas and were attacking the Bharwads with deadly weapons. The police personnel reached there immediately and saw that the members of the Koli Patel community had shut Bharwad Karshan Somabhai, Rukhadbhai Somabhai Bharwad and Navghan Ghoghabhai Bharwad in their houses and these persons were confined in the houses. The persons in the mob, with a view to kill them, had set their houses on fire and with a view to save the persons residing in the said houses as well as because the persons in the mob were pelting stones indiscriminately and the mob had become very violent, to save the persons confined in the houses as well as because police personnel were injured because of stone pelting, to control the mob, several rounds were fired by the police personnel as detailed in the FIR during which time the Ahmedabad District Superintendent of Police arrived and fired two rounds to control the mob and upon the mob having dispersed a serious incident involving fatalities was prevented and there was cessation of police firing and taking into account mobs of both sides there were about 3 to 4 thousand persons.

The reason for this incident was that on that day at about 9:30 hours there was an altercation between youths belonging to Koli Patels and Bharwads near Dhedhal Chowkdi in connection with seating rickshaw passengers. In this context mobs of both the communities with a view to further the conspiracy hatched by them, formed unlawful assemblies and with a view to cause damage to each other''s lives and properties, armed with weapons attacked each other and upon the police reaching there even the police were attacked in a deadly manner and simple to serious injuries were inflicted on the six police personnel named therein as well as the persons in the mob had inflicted serious injuries on Ajitbhai Prahladbhai Koli Patel who died at Bavla Government Hospital during the course of treatment. That out of the vehicles passing by, the persons in the mob had caused damage to three motor cycles, and one tractor and one chhakda and had thrown them in the pond as well as in the pit and had pelted stones on the Government jeep and broken the front glass.

Thus, the persons in the mob had with a view to further the conspiracy hatched by them, come together to form an unlawful assembly and armed with weapons attacked each other as well as the police and with a view to kill persons burnt their houses and caused the death of Ajitbhai Prahladbhai Koli Patel and had caused injuries to the police personnel also and those persons who had sustained injuries during police firing as well as lathi charge as well as those who have been injured in the inter se fighting as well as the other 3 to 4 thousand unknown persons he was lodging this complaint.

18.2 The first information report registered vide Bavla Police Station C.R. No. I-155 of 2008 was lodged on 8.7.2008 at 22:35 hours, in connection with an incident which is alleged to have taken place on 8.7.2008 at 9:15 hours. The place of incident was Mouje Dhedhal village near the pond, 5.0 Km. 3 Dhedhal beat. The first informant was one Babubhai Popatbhai Koli Patel, resident of Vasna village, Taluka Bavla and the accused were 18 named persons, all belonging to the Bharwad community, including the petitioners herein. The contents of the first information report are that the informant is an agriculturist and is also a director of the Agricultural Produce Market Committee, Bavla. On the previous day, that is, on 7.7.2008 in the evening at about 6:30 p.m., his cousin Jayantibhai Gordhanbhai told him that when Budhabhai of their village and two rickshaws were taking passengers at Dhedhal Chokdi, at that time the Bharwads of Dhedhal village who also ply riskshaws, chhakdas etc. asked the Koli Patels as to why they were taking passengers and saying so took out the keys of the jeep and beat up the Koli Patel boys, and abused and threatened them and told them not to bring jeeps and rickshaws to Dhedhal Chokdi and that at that time he was coming to Dhedhal Chokdi from Ahmedabad and was standing on the opposite side of the road when Jayantibhai told him the aforesaid. Jayantibhai had come to fill up milk.

Upon Jayantibhai telling him the aforesaid, he crossed the road and went to Dhedhal Chokdi where rickshaws, chhakdas, jeeps halt and there he met Budhabhai Laljibhai Koli Patel of his village and his brother Jayantibhai Laljibhai and asked them as to what had happened and they told him that they park their jeeps and rickshaws there and take passengers and the Bharwads also ply their jeeps and rickshaws and the Bharwads are browbeating them and are threatening them that except for Bharwads no one else should bring jeeps and chhakdas there and saying so Sanjay Chelabhai Bharwad, resident of Dhedhal took away the keys of their jeeps and rickshaws and he and the other Bharwads beat them. Therefore, he (the informant) told Kantibhai Ratnabhai Bharwad and two three others who were standing there that the chokdi (cross-roads) and the road were of the ownership of the Government and that rickshaw-walas and chhakda-walas of their community were wrongfully beating up and threatening the rickshaw-walas and chhakda-walas of the first informant''s community and were taking away the keys of their rickshaws and jeeps which was not proper and that they should make them understand and tell them not to do so as it was not good. Saying so, he (the informant) went home.

On that day in the morning he had a meeting at A.P.M.C. Bavla. Hence he set out from his home in a Maruti Alto car No. GJ-1-H-6407 to go to Bavla. His son Hemubhai Babubhai was driving the car and his cousin Manubhai Manabhai Koli was also sitting with him in the car. After leaving Vasna he was coming towards Dhedhal village and in front of him his cousin Vadibhai Pakhabhai''s tractor and one chhakda rickshaw were going. At approximately 9:15 hours, they reached near Ramgadh Bapa''s Deri (temple) near the Dhedhal village pond whereupon the tractor and rickshaw had halted, hence, their car also halted and in a little while upon hearing sounds of shouts and shooting, he and Manubhai got down from the car and saw that ten to twelve persons belonging to the Bharwad community were assaulting his cousin Vadibhai Pakhabhai and Amubhai Pakhabhai with sticks. They were also assaulting the chhakda rickshaw-wala. He saw that Ganesh Jaksi Bharwad of Dhedhal village had a tamancha-like weapon in his hand and raising his hand in the air with the weapon was shouting maro-maro and amongst the other Bharwads Sanjay Chela Bharwad, Dhiru Matam Bharwad, Sura Raiji Bharwad of Dhedhal were intercepting people going on the road and Karshan Chako Bharwad, Moman Natha Bharwad, Kalu Sedha Bharwad, Kalu Hari Bharwad, Chinu Bhikhu Bharwad were assalting Vadibhai Pakhabhai and Amubhai as well as the chhakda riskshaw-wala saying that the road was not for them, why were they passing through it? Hence, he and Manubhai went to rescue Vadibhai. At that time Jayantibhai Laljibhai Patel of their village and with him Matambhai Vadibhai Patel came on a motorcycle. They too were stopped and all the above persons jumped on them and started assaulting them telling them that why are you Kolis passing from here, you have become too big for your boots and we will not leave you. We will pick out each of you and beat you. And saying so they started giving stick blows to them due to which he was injured on his right hand and his head. He saw that Surabhai Raijibhai Bharwad had inflicted stick blows on Manubhai due to which he was injured and he became unconscious. When the mob beat up Manubhai at that time other Bharwads from Dhedhal village had also arrived.

At that time they had launched assault on the people coming from the direction of his village as well as from Bavla, as well as on persons dressed like Koli Patels by stopping cars passing through the road and were shouting maro-maro (beat-beat), kapo-kapo (cut-cut), wherever you see Kolis kill them. Therefore, those persons with a view to save their lives were throwing away their vehicles and were bleeding heavily. And he had moved to one side and was watching the spectacle.

These Bharwads were also making phone calls. After some time, from a distance, he saw a mob of Bharwads armed with weapons come from the direction of Bavla. They had come in cars and after dropping them the cars had gone and he saw that Suresh Nanu Bharwad and Jakmi Nagji Bharwad had weapons like revolvers, Amra Hari had a long barreled gun like weapon. Moreover, Atul Mahadev Bharwad, Sanjay Manu Bharwad, Bhupat Nanu Bharwad, Hari Chhagan Bharwad and Suresh Sangram Bharwad were armed with sticks. Dhiru Arjan Bharwad had a dharia like weapon. He could identify them but could not identify the other persons. These persons were also shouting maro-maro and were stopping the vehicles passing on the road and assaulting the people.

At that time one boy came running towards him and Hari Chhagan Bharwad inflicted a stick blow on him whereupon he fell down in front of him. The assault was going on and people were running helter-skelter and there was no one to save them. He went near him and saw that it was one Ajitbhai Prahladbhai of Juwal village who belonged to their community. On seeing this incident he felt dizzy and became more or less unconscious. When he regained consciousness he found that he was admitted in the hospital and his relatives were inquiring about his health. His brother Bhikhabhai Popatbhai told him that his cousin Manubhai Manabhai and Ajitbhai Prahladbhai of Juwal village had died. In the fracas, his watch had fallen down. He also learnt that those persons who were injured had been admitted in different hospitals and he is not aware as to how many persons have been injured, hence he is not in a position to state their names.

Thus, in the context of the incident of assault that had taken place on the day before, that is on 7.7.08 in the evening ,regarding seating of passengers in chhakda rickshaws and jeeps, on that day (8.7.2008) in the morning at 9:15 am, as stated hereinabove, Bharwads of Dhedhal village with a view to take revenge had gathered together and stopped vehicles passing by and attacked persons belonging to the Koli Patel community with revolvers, sticks and other deadly weapons

18.3 To summarize, the first information report being C.R. No. I-154 of 2008 indicates that the same pertains to an incident that has taken place from 9:30 to 15:00 hours on 8.7.2008. The place of occurrence is Dhedhal Chokdi village west 5 kms Dhedhal beat. Initially there was an altercation between the two communities at Dhedhal Chokdi, but by the time the informant reached the place, the crowd had dispersed and the clash between the two communities was continuing at Dhedhal village. Thereafter, they went to Dhedhal village after calling for additional forces. Despite all attempts to placate the crowds the clashes continued, hence they had to resort to lobbing gas shells and firing gas guns. The Kolis then surrounded the Bharwad vaas and shut some of the Bharwads in their houses and set their houses on fire and the mob was pelting stones and had become violent. Hence, the police had to resort to firing and lathi charge. In the said incident six police personnel and other persons were injured and one person, namely Ajit Prahladbhai Koli Patel died. Three motor cycles, one tractor and one chhakda rickshaw were thrown in the pond and in the water hole nearby. The cause of the incident was that at about 9:30 hours there was a quarrel between youths belonging to Koli Patel and Bharwad communities near Dhedhal Chokdi in connection with seating of rickshaw passengers. The FIR talks of an incident at Dhedhal Chokdi which was over by the time the police came on the scene as the crowd had dispersed. No injuries or fatalities appear to have taken place in the said incident, as nothing has come on record in this regard. The other incident is the incident in the village where initially there was a clash between the two communities which then proceeded inside the village where some Bharwads were shut in their houses and the houses were set on fire. The police had to resort to lathi-charge and firing and in the said incident one Ajitbhai Prahladbhai was injured.

18.4 To summarize, the first information report being C.R. No. I-155 of 2008 indicates that the incident had started at about 9:15 hours on 8.7.2008. The place of occurrence was Mouje Dhedhal village 5 kms 3 Dhedhal beat near Ramgadh Bapa''s Deri near Dhedhal village pond. The Bharwads were the assailants and were attacking the Kolis, who with a view to saving their lives had thrown away their vehicles and were injured and bleeding heavily. Apart from the Bharwads who were present at the time when the first informant reached the spot, other Bharwads also came in cars armed with weapons. In the assault, Surabhai Raijibhai Bharwad had inflicted stick blows on Manubhai due to which he was injured and became unconscious and Ajitbhai Prahladbhai of Juwal village was given a stick blow by Hari Chhagan Bharwad and he fell down in front of the informant. Later on the informant heard that Ajit Prahladbhai and his cousin Manubhai had died because of the injuries sustained by them. The cause of incident was the assault that had taken place regarding seating of passengers in chhakda rickshaws and jeeps on the evening of 7th July, 2008. This incident has also taken place at Dhedhal village on the road near the pond near Ramgadh Bapa''s Deri. The first informant belongs to the Koli Patel community and names Bharwads as aggressors and Koli Patels as victims. The FIR talks of vehicles being thrown away as well as the deaths of Ajitbhai Prahladbhai and Manubhai.

18.5 At this stage it may also be pertinent to refer to some other documents which form part of the record of the case, viz., the inquest panchnama of deceased Ajitbhai Prahladbhai and the scene of offence panchnamas in respect of the both the FIRs. As per the inquest panchnama which was drawn at the instance of Mr. M.N. Pandya, the first informant of C.R. No. I-154 of 2008, on 8.7.2008 at 10:00 hours, while he was patrolling at Bavla Town he had received a telephone call from the Bavla P.S.O. that there was an altercation between Bharwads and Koli Patels at Dhedhal Chokdi and the clash was going on. Hence he came to the Police Station and took necessary police personnel with him and upon reaching Dhedhal Chokdi, the crowd had dispersed and it was learnt that the clash between the two groups was still continuing. Therefore, they had come to Dhedhal village, had dispersed the crowds and as several persons were injured, 108 ambulance and other ambulances were called and steps were taken to send the injured to Bavla Government Hospital and later on it was learnt that one of the injured had died and his dead body was lying in the Bavla Government Hospital. Hence, he had come to the Bavla Government Hospital and drawn the panchnama. This panchnama, to which, the first informant of C.R. No. I-154 of 2008 was a party, indicates that initially an incident had taken place at Dhedhal Chokdi which was over by the time the police reached the scene and the clash continued at Dhedhal village where the police dispersed the crowd and called the ambulances which took the injured to the Bavla Government Hospital and one of the injured persons who died was Ajitbhai Prahladbhai Koli Patel.

18.6 The panchnama of the scene of incident of C.R. No. I-154/08 which was drawn at the instance of Mr. M.N. Pandya commences at the road near the Dhedhal village pond. The panchnama was carried out at 9:30 a.m. on 9.7.08. As per the panchnama, the first informant Mr. M.N. Pandya had shown the scene of occurrence which was situated opposite the Dhedhal village pond where residential houses of Bharwad Khemabhai Khodabhai, Bharwad Ghugabhai Somabhai, Bharwad Karshanbhai Somabhai and Bharwad Manubhao Ghudabhai are situated. The panchnama refers to the damage caused to these houses. The panch party then proceeds outside the Bharwad vaas on the road going from Bavla towards Dhedhal Vasna. As per the panchnama the village pond is situated on the northern side of the road and in the waters of the pond, one chhakda is lying. Ten meters towards the east of the Chhakda one blue coloured damaged Hero Honda motor cycle is lying in the waters of the pond and fifty metres to its east, a damaged black coloured Hero Honda is lying sideways. Towards the west, on the southern side of the road there is a water hole wherein a motor cycle is lying in a damaged condition. Towards the west of the bike, at a distance of about hundred metres a tractor is lying in the waters. The panch party then proceeds towards the road and on inspecting the road, innumerable old chappals and pieces of bricks are found till a distance of two furlongs. Towards the west of the village pond on the side of the road there are blood stains. About one furlong from that place on the left side of the road the residential house of Pagi Dhirubhai Atmaram is situated and in the courtyard dried blood stains are seen in an area of 2 feet. At a distance of one furlong from this place, on the left side of the road the residential house of Pagi Gangaram Mathurbhai is situated and there are signs of the incident, like chappals and brick pieces till this place. Since the incident is stated to have commenced at Dhedhal chokdi, the panch party then proceeds towards Dhedhal chokdi in a police jeep. It is found that from the Chokdi towards Dhedhal village as well as towards Bavla town, till approximately a distance of one furlong, scattered heaps of bricks are found and from Dhedhal Chokdi towards Sarkhej at a distance of hundred feet on the east of the road a shop by the name of Bhavani towers is situated and towards the west of the shop at a distance of about twelve metres dried blood spots are found. Thus, as per this scene of offence panchnama, it covers Dhedhal Chokdi where the incident is said to have started as well as the road near the village pond and the Bharwad vaas in the village.

18.7 The scene of offence panchnama in connection with C.R. No. I-155 of 2008 was drawn on 10.7.2008. The scene of occurrence was shown by Hemantbhai Babubhai Koli Patel, son of the first informant Babubhai Popatbhai Koli Patel. As per the said panchnama, the place of occurrence is opposite Dhedhal village Ramnagar Bapa''s Deri, ten metres north on the road going from Bavla towards Vasna Dhedal. The panchnama also records that touching the road on the northern side, the village pond is situated, and in the pond a chhakda, a bike and at a distance a bike are lying at the corner of Balapirni Dargah and towards the south of the road in the water hole, a tractor and a bike are lying in a damaged condition. Exactly opposite the road towards the south, the Bharwad vaas is situated and the Dhedal Gram Panchayat office is situated nearby towards the west.

18.8 The scenes of offence panchnamas clearly falsify the case of the prosecution that the scenes of incidents in both cases are distinct and far apart. It is apparent that the road near the pond and the Dhedhal village, including the Bharwad vaas are contiguous areas. The case of the prosecution as stated in the affidavit-in-reply filed by Mr. J.P. Raol, Police Inspector, Local Crime Branch, Ahmedabad Rural, that the incident in respect of which C.R. No. I-155 of 2008 came to be filed occurred at the Dhedhal pond at the outskirts of the village whereas the place of occurrence in respect of the incident in connection with which C.R. No. I-154 of 2008 came to be filed is at Dhedhal village at a distance of about 2 kms from Dhedhal chokdi is somewhat misleading. Dhedhal village may be situated at a distance of 2 kms from Dhedhal chokdi, but it is not even the case of the prosecution that the scene of occurrence of C.R. No. I-155 of 2008 is Dhedhal chokdi. Dhedhal pond, the road near the pond as well the Dhedhal village and the Bharwad vaas inside the village appear to be contiguous areas and the offence appears to have been spread over the entire area as is apparent from the panchnama of the scene of offence drawn in C.R. No. I-154 of 2008 as well as from the contents of the said FIR. The areas referred to in the panchnama of the scene of offence drawn in C.R. No. I-155 of 2008 already find a mention in the earlier panchnama. Thus, the panchnama of the scene of incident of C.R. No. I-154 of 2008 includes the scene of occurrence of C.R. No. I-155 of 2008, thereby fortifying the case of the petitioners that both the FIRs pertain to the same offence.

18.9 Though it is the prosecution case as well as the case of the respondent No. 2 that in the first incident, which according to them was the incident in connection with which C.R. No. I-155 of 2008 came to be registered, the Bharwads were the aggressors and Koli Patels were victims and most of the statements recorded in connection with the said FIR do not refer to the police having arrived at the scene of offence, no explanation is coming forth as to who took the injured to the hospital and who had called the ambulance. Whereas a perusal of the record, and more particularly the statements of J.D. Jhala Dy S.P., Budhabhai Laljibhai Koli Patel, Dashrathbhai Popatbhai Koli Patel and Fulabhai Alabhai Devipujak go to show that it was upon the police arriving at the scene of incident that the crowd dispersed and it was the police who had called the ambulances and had taken the injured to the hospital. It is highly unfortunate that despite a specific query being put to the prosecution as to who had called the ambulances and had taken the injured to the hospital, the prosecution has chosen to maintain absolute silence in that regard. The first informant of C.R. No. I-154 of 2008 was present before the Court when the matter was heard and was briefing the learned Additional Public Prosecutor, however, though having himself stated in the inquest panchnama of deceased Ajit Prahladbhai which was drawn on 8.7.2008 from 15:30 hours to 16:30 hours (prior to the lodging of C.R. No. I-155 of 2008) that after coming to Dhedhal village the crowd had been dispersed and as several persons were injured steps were taken to call 108 ambulance and other ambulances to take the injured persons to the Bavla Government Hospital, before this Court, he had pleaded ignorance as regards who has called the ambulances and taken the injured to hospital. A perusal of the injury certificates which form part of the record of the charge-sheet papers of C.R. No. I-155 of 2008 clearly indicates that at the first point of time before the Medical Officer, most of the injured witnesses have stated that the incident occurred at varying times from 10:00 to 13:00 hours which belies the categorical case of the prosecution as stated in the affidavit of Mr. J.P. Raol, that the said incident took place on 8.7.2008 at about 9:00 hours. However, subsequent to the lodging of the second FIR, a different version is sought to be put forth by both the first informant of C.R. No. I-154 of 2008 as well as other witnesses. In fact in his statement dated 11.7.2008, even Mr. M.N. Pandya has come up with a version which is different from the version stated in the first information report lodged by him, presumably to bring the same in consonance with the second FIR.

18.10 Apart from the aforesaid, it may be germane to notice the following. On 15th July, 2008 the Investigating Officer submitted a report to the learned Magistrate wherein it was stated thus: ''Bavla Police Station I C.R. No. 154/08 has been registered on 8.7.08 at 17:30 hours for the offences punishable under Sections 147, 148, 149, 302, 307, 332, 333, 436 IPC and 135 of the Bombay Police Act and Section 3(7) of the Damages to Public Property Act, investigation into which, is being personally carried out by me.

However, over and above the present FIR in connection with the deceased person, an offence has been registered vide I C.R. No. 155/08 for the offences under Sections 147, 148, 149, 302 etc. That investigation in connection with that offence is also being carried out by me. Hence, as in connection with I C.R. No. 154/08 in relation to deceased Ajitbhai Prahladbhai a separate FIR has been registered vide I C.R. No. 155/08 for the offences u/s 147, 148, 149, 302 IPC etc. Section 302 may kindly be deleted from FIR No. 154/08.

Simultaneously, two other reports being arrest reports of the petitioners came to be submitted in connection with both FIRs, wherein in respect of the arrest report of the accused of C.R. No. I-154/08, Section 302 IPC has been deleted.

18.11 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. According to the Investigating Officer another offence has also been registered vide C.R. No. I-155 of 2008 which also covers the death of Ajitbhai Prahladbhai, hence the offence qua Section 302 IPC is required to be deleted from the said FIR. This conduct of the Investigating Officer in seeking to delete Section 302 IPC from the first FIR lends credence to the prosecution case that the offence registered first in point of time wherein members of both the communities are parties, is sought to be diluted. Generally the investigating agency seeks addition of a section if during the course of investigation such offence is revealed and seeks deletion of a section if investigation reveals that no such offence has taken place, or that there is no evidence in support of such a charge. Whereas in the facts of the present case, Section 302 IPC is sought to be deleted from the first FIR on a totally different ground which is alien to criminal jurisprudence, inasmuch as a section is sought to be deleted not on the ground that no such offence has taken place but because subsequently another FIR has been registered which includes the said offence. This application for deletion of Section 302 IPC itself indicates that both the FIRs are filed in connection with the same incident. Since the first FIR had been lodged earlier in point of time, the same refers to the death of one person only, probably since the first informant may not be aware of the death of the other two persons who died subsequently during the course of treatment. However, not naming the said persons as having died during the course of the incident would not detract from the case of the petitioners that both the FIRs have been lodged in connection with the same incident. Moreover, a perusal of the Post-mortem note of deceased Ajitbhai Prahladbhai also gives reason to believe that the death has occurred during the course of the same incident. In the opinion of this Court, the record of the case clearly indicates that both the FIRs arise out of the same incident and not distinct and separate incidents as is sought to be contended by the respondents.

On behalf of the respondents, it has also been contended that since the offence u/s 302 IPC has been deleted from the first FIR, no prejudice is caused to the petitioners as they do not have to face prosecution for the same offence twice. Since this question is intertwined with the other principal contention raised in the petitions, viz., the investigation being unfair and biased, the same shall be discussed together at an appropriate stage.

Having held that both the FIRs arise out of the same incident, the next question would be whether the second FIR is in the nature of a counter complaint. Testing the facts of the present case in the light of the decision of the Apex Court in Upkar Singh''s case, it is true that both the first information reports have been lodged by different informants, however, the first FIR has been lodged by a Police officer against all the members of the crowd who had indulged in rioting and covers all the accused belonging to both the communities whereas the second FIR is lodged by a member of the Koli Patel community against members of the Bharwad community. Thus, the second FIR is not in the nature of a counter complaint, as the first FIR covers all the accused. In fact most of the accused of the second FIR who belong to the Bharwad community are also arraigned as accused in the charge sheet filed in connection with the first FIR. Considering the fact that the incident in question has arisen out of a clash between two communities, had it been a case of a counter complaint, an accused of the first FIR, or a member of the said community would have been the informant of the second FIR and all the accused would be members of the opposite community and vice versa. Had the first FIR been lodged by a member of the petitioners'' community against members of the respondent No. 2''s community, then the second FIR would have been a counter complaint, which is not so in the present case. Hence, the second FIR cannot be said to be a counter complaint. The decision in Upkar Singh''s case would, therefore, not carry the case of the respondents any further.

Next, it would be required to be examined as to whether the second FIR is in the nature of a rival version. In Kari Choudhary v. Sita Devi (supra) what has been held by the Apex Court is that when there are rival versions in respect of the same episode, they would naturally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. It has been contended on the part of the respondents that firstly both the first information reports are lodged in respect of different incidents, however, even it were to be held that both first information reports pertain to the same incident, the second first information report is only a rival version and as such it was permissible for the investigating agency to carry on investigation pursuant to the same. However, on facts the said contention does not appear to be sustainable in view of the fact that both the first information reports can in no manner be said to be rival versions. One is a version of police officer who was a witness to the incident against all the accused in general, taking into its fold more or less the entire transaction, whereas the other is a version of a person who is an accused in connection with the first FIR and belongs to one of the communities between whom the clashes had taken place and the accused in the said case belong to the rival community. Had it been a case of rival versions, the accused in connection with both the offences would have been different, whereas in the present case several persons belonging to the Bharwad community are arraigned as accused in connection with both the first information reports. In the opinion of this Court, the second FIR is merely a version of one of the injured witnesses, who also happens to be an accused in the first FIR and can in no manner be termed as a rival version. If the contention raised by the respondents is taken to its logical end, there could be an umpteen number of FIRs on the basis of versions given by different witnesses against accused who may be common in all the versions and consequently would have to face separate prosecutions in connection with each version.

Since the second FIR is neither in the nature of a counter complaint nor a rival version, the core question then which arises for determination is whether the second FIR which arises out of the same incident is maintainable. The lead decision in this regard is T.T. Antony v. State of Kerala and Ors. (supra) hence, it would be germane to refer to it in some detail.

22.1 Briefly stated the facts of the said case are that in view of violent demonstrations staged by members of the youth wing of the rival political party when a Minister came to inaugurate a Cooperative Bank, the police had to open fire at two places (i) in the proximity of the Town Hall on the orders of the Executive Magistrate and Deputy SP, and (ii) in the vicinity of the Police Station on the orders of the SP. As a result of the firing five persons died and six were injured. In the melee which preceded the police firing, more than hundred persons suffered injuries in lathi-charge resorted to by the police, and a few police personnel also suffered injuries. In respect of the two incidents two FIRs were lodged being Crime No. 353 and 354 of 1994. One against 8 named and other unidentifiable persons and the other against unidentifiable persons. Both crimes were registered on same day. Pursuant to a report of the Commission appointed to inquire into the incident, the DGP directed the IG of Police to register a case and have it investigated by a senior officer pursuant to which Crime No. 268 of 1997 of Kuthuparamba Police Station came to be registered. Before the High Court writ petitions were filed for quashing the FIR in Crime No. 268 of 1997 and alternatively for directing investigation into the crime by CBI. The cases registered as Crimes Nos. 353 and 354 of 1994 of Kuthuparamba Police Station which were mainly against the workers and DYFI [youth wing of CPI (M)] came to be closed as being false and undetected sometime in April 1999 and June 1999 respectively after the said Crime No. 268 of 1997 of Kuthuparamba Police Station was registered. The learned Single Judge who dealt with the said writ petitions thought it fit, having regard to the peculiar facts and circumstances of the case, to have the case reinvestigated by CBI instead of quashing the FIR at the threshold and accordingly disposed of the writ petitions on 29-11-1999. Against the said judgment of the learned Single Judge, six writ appeals were filed - three by the said writ petitioners and three by the State of Kerala. A Division Bench of the High Court, by its judgment dated 29-2-2000, confirmed in part the order of the learned Single Judge in regard to quashing the FIR in the said Crime No. 268 of 1997 of Kuthuparamba Police Station by ordering that as against the Assistant Superintendent of Police the FIR be quashed; however, it directed a fresh investigation by the State police headed by one of the three senior officers named in the judgment instead of a fresh investigation by CBI. Dissatisfied by the said judgment of the Division Bench, appeals came to be preferred before the Supreme Court. Before the Supreme Court it was argued that the registration of fresh information in respect of the very same incident as an FIR u/s 154 CrPC is not valid and therefore, all the steps taken pursuant thereto, including investigation are illegal and liable to be quashed. The Supreme Court, inter alia, held thus:

An information given under Sub-section (1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion u/s 169 or 170 CrPC, as the case may be, and forwarding of a police report u/s 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report - FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling u/s 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence u/s 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR u/s 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender - who can be arraigned in the report u/s 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.

The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion u/s 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned u/s 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of Sub-section (8) of Section 173 CrPC.

From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.

The learned Solicitor-General relied on the judgment of this Court in Ram Lal Narang State (Delhi Admn.) (referred to as ''Narang case'') to contend that there can be a second FIR in respect of the same subject-matter. In that case the contention urged by the appellant was that the police had committed illegality, acted without jurisdiction in investigating into the second case and the Delhi Court acted illegally in taking cognizance of that (the second) case. A reference to the facts of that case would be interesting. Two precious antique pillars of sandstone were deposited in the Court of Ilaqa Magistrate, Karnal, as stolen property. One N.N. Malik filed an application before the Magistrate seeking custody of the pillars to make in-detail study on the pretext that he was a research scholar. It appears that the then Chief Judicial Magistrate of Karnal (H.L. Mehra), was a friend of Malik. At the instance of Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given to Malik on his executing a bond. About three months thereafter Malik deposited two pillars in the Court of Ilaqa Magistrate, Karnal. After some time it came to light that the pillars returned by Malik were not the original genuine pillars but were fake pillars. An FIR was lodged against both Malik and Mehra u/s 120B read with Sections 406 and 420 IPC alleging conspiracy to commit criminal breach of trust and cheating. CBI after necessary investigation filed charge-sheet in the Court of Special Magistrate, Ambala, against both of them. Ultimately on the application of the Public Prosecutor the case was permitted to be withdrawn and the accused were discharged. Sometime later the original genuine pillars were found in London which led to registering an FIR in Delhi u/s 120B read with Section 411 IPC, and Section 25(1) of the Antiquities and Art Treasures Act, 1972 against three persons who were brothers (referred to as ''the Narangs''). The gravamen of the charge against them was that they, Malik and Mehra, conspired together to obtain custody of the genuine pillars, got duplicate pillars made by experienced sculptors and had them substituted with a view to smuggle out the original genuine pillars to London. After issuing process for appearance of the Narangs by the Magistrate at Delhi, an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before the Ambala Court, therefore, the Delhi Court acted without jurisdiction in taking cognizance of the case on the basis of illegal investigation and the report forwarded by the police. The Magistrate referred the case to the High Court and the Narangs also filed an application u/s 482 CrPC to quash the proceedings. The High Court declined to quash the proceedings, dismissed the application of the Narangs and thus answered the reference. On appeal to this Court, it was contended that the subject-matter of the two FIR and two charge-sheets being the same, there was an implied bar on the power of the police to investigate into the subsequent FIR and the Court at Delhi to take cognizance upon the report of such information. This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It appears to us that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different - the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. It was pointed out that even under the Code of 1898, after filing of final report, there could be further investigation and forwarding of further report. The 1973 CrPC specifically provides for further investigation after forwarding of report under Sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned u/s 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs - the first and the second - is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report u/s 173 CrPC will be irregular and the court cannot take cognizance of the same.

A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that Sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report u/s 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report u/s 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power u/s 482 CrPC or under Articles 226 and 227 of the Constitution.

Coming to the facts of this case, which are not free from political overtones, the incident which gave rise to registering of FIRs, took place on 25-11-1994 on the occasion of the visit of the Minister to Alakkandy Complex at Kuthuparamba, Tellicherry Road (Kannur District) for inauguration of the evening branch of Cooperative Urban Bank. The events that developed there led to firing by the police at two places: (i) in the vicinity of the Town Hall for which FIR was lodged and Crime No. 353 of 1994 under Sections 143, 147, 148, 332, 353, 324 and 307 read with Section 149 IPC, Section 3(2)(e) of the PDPP Act and Sections 3 and 5 of the Explosive Substances Act, was registered, and (ii) in the vicinity of Police Station Kuthuparamba in respect of which FIR was filed and Crime No. 354 of 1994 of Kuthuparamba Police Station under Sections 143, 147, 148, 307 and 427 read with Section 149 IPC and Section 3(2)(e) of the PDPP Act was registered. While the investigations on the basis of the said FIRs were pending, the report of Mr K. Padmanabhan Nair, Inquiry Commission, was submitted to the Government. On 30-6-1997, the Additional Chief Secretary wrote to the Director General of Police that the Government had accepted the report of the Commission and directed that legal action be taken against those responsible on the basis of the findings of the Commission. On 2-7-1997, the Director General of Police, however, wrote to the Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a senior officer. Two days thereafter, the Inspector General of Police added his own remarks - ''firing without justification by which people were killed amounted to murder'' - and ordered the Station House Officer to register a case under the appropriate sections and forward the investigation copy of the FIR to the Deputy Inspector General of Police (North Zone) for urgent personal investigation. On the date when the Additional Chief Secretary wrote to the Director General of Police, the investigations initiated in the said two crimes relating to the same incident were in progress. The investigating agency should have taken advantage of the report of the Commission for a proper further investigation into the case. On the facts which might come to light during investigation, if necessary, the investigating agency should have altered the offences under appropriate section of the relevant Acts and concluded the investigations. In view of the orders of the Director General of Police to register a case and on the further direction of the Inspector General of Police, the officer in charge of the police station registered Crime No. 268 of 1997 of Kuthuparamba Police Station. A comparison and critical examination of the FIRs in Crimes Nos. 353 and 354 of 1994 on one hand and FIR in Crime No. 268 of 1997 on the other, discloses that the date and place of occurrence are the same; there is alluding reference to the deaths caused due to police firing in the FIRs in Crimes Nos. 353 and 354 of 1994. In any event, that fact was evident on the scene of occurrence. The narration of events, which we need not repeat here, is almost the same. The additional averments in Crime No. 268 of 1997 are based on the findings in the report of the Commission. Having regard to the test laid down by this Court in Narang case with which we are in respectful agreement, we find that in truth and substance the essence of the offence in Crimes Nos. 353 and 354 of 1994 is the same as in Crime No. 268 of 1997 of Kuthuparamba Police Station. In our view, in sending information in regard to the same incident, duly enclosing a copy of the report of the Commission of Inquiry to the Inspector General of Police for appropriate action, the Additional Chief Secretary adopted the right course of action. Perhaps the endorsement of the Inspector General of Police for registration of a case misled the subordinate police officers and the said letter with regard to the incident of 25-11-1994 at Kuthuparamba was registered again u/s 154 CrPC which would be the second FIR and, in our opinion, on the facts of this case, was irregular and a fresh investigation by the investigating agency was unwarranted and illegal. On that date the investigations in the earlier cases (Crimes Nos. 353 and 354 of 1994) were pending. The correct course of action should have been to take note of the findings and the contents of the report, streamline the investigation to ascertain the true and correct facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 CrPC, as the case may be, and forward the report/reports u/s 173(2) or Section 173(8) CrPC to the Magistrate concerned. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of CrPC as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No. 353 or 354 of 1994 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.

22.2 In view of the law laid down in the above cited decision, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. As noted hereinabove, a comparison and critical examination of the FIR being C.R. No. I-154 of 2008 on one hand and FIR being C.R. No. I-155 of 2008 on the other, discloses that the date, time and place of occurrence are the same; there is reference to death of Ajit Prahladbhai Koli Patel in both the FIRs. This Court finds that in truth and substance the essence of the offence in C.R. No. I-154 of 2008 is the same as in C.R. No. I-155 of 2008 of Bavla Police Station. In the light of the aforesaid principles enunciated by the Supreme Court, the course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making fresh investigation is not permissible under the scheme of the provisions of CrPC as laid down by the Supreme Court, therefore, the investigation undertaken and the report thereof and all proceedings pursuant thereto, are without jurisdiction, invalid and cannot be sustained. This Court, therefore, has no option except to quash and direct the investigating agency to make further investigation in respect of the first information report registered vide Bavla Police Station I-C.R. No. 154 of 2008, forward report or reports and thus proceed in accordance with law.

22.3 True it is, that in T.T. Antony also initially two first information reports came to be filed in respect of two incidents and it was the third first information report which was subject matter of challenge before the Apex Court. However, as is apparent from the facts stated in the order, both the incidents took place at different places and it is nobody''s case that both the first information reports were arising out of the same incident nor that there were common accused in both the FIRs. In any case the lodging of two FIRs does not appear to have been subject matter of challenge at any point of time; hence the Court was not called upon to decide as to whether on the facts of the said case, the two FIRs were in respect of the same incident or distinct incidents and whether two FIRs could have been filed at the relevant time. Hence, the said fact would have no relevance insofar as the present case is concerned.

22.4 On behalf of the respondents it has been contended that the second FIR can be said to be a rival version, a counter case, or as held in Ramlal Narang''s case, it would form part of the larger conspiracy and as such the second FIR is maintainable. In Ramlal Narang''s case the Supreme Court was of the view that what has to be seen is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. In the present case as is apparent from the facts noted hereinabove, the first FIR covers the larger conspiracy, wherein persons belonging to two communities are alleged to have hatched conspiracies against each other and committed the offences alleged in furtherance of the said conspiracies. Thus the first FIR covers the entire incident. As rightly contended by Mr. Nanavaty for the petitioners, all the decisions rendered after T.T. Antony, refer to registration of an offence in respect of a larger conspiracy being permissible when earlier there was a smaller conspiracy, but the converse is not permissible. When the larger conspiracy takes within its fold the entire incident, the question of registration of a second FIR in respect of a smaller conspiracy forming part of the larger conspiracy will not arise. Hence, the said contention does not merit acceptance. The decision in Ramlal Narang''s case would, therefore, not be applicable to the facts of the present case.

22.5 In Nirmal Singh Kahlon, the Supreme Court proceeded on the basis that on the selfsame cause of action two first information reports are not maintainable. On facts the Supreme Court found that the second FIR lodged by the Central Bureau of Investigation (CBI), however, was on a wider canvass. It was lodged after holding a detailed preliminary inquiry. CBI collected a large number of materials. It had also recorded the statements of a large number of persons. Whereas the first FIR dated 14.6.2002, thus contained the misdeeds of individuals, the second one depicted a crime committed in the course of the selection process of panchayat secretaries involving a large number of officers. The High Court was not concerned with individual acts. It was concerned with a scam involving appointment of panchayat secretaries. The Court held that an offence committed by an individual or two and an offence disclosed in a scandal involving a large number of officers from the lowest category to the highest category is distinct and different. It was further held that when two conspiracies are alleged; one is larger than the other, there may be some common factors but the nature of offence would differ. An offence committed would not be judged by mere mentioning of the sections but the mode and manner in which the same was committed as also the nature thereof. The Court further held thus:

The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.

For the same reasons stated in connection with the applicability of Ramlal Narang case, this decision would also not apply to the facts of the present case.

On behalf of the respondents it has been submitted that after the investigation, final report has been filed and the learned Magistrate has taken cognizance and has committed the case to the Court of Sessions, the trial Court can consider the pleas of the accused u/s 227 of the Code but at this stage neither can the investigation be challenged in these petitions nor can the sufficiency of the evidence be gone into by this Court except to see whether a cognizable offence is disclosed.

23.1 The contention that it is always open for the petitioners to approach the trial Court for discharge is besides the point in issue. The petitioners have not approached this Court on the merits of the individual cases seeking relief akin to discharge. What they are seeking is quashing of the 2nd first information report on the ground that two first information reports are not maintainable in respect of the same offence, the main reason being they would be prosecuted twice over in connection with the same incident whereas the persons belonging to the other community would be prosecuted only qua the first information report dealing with lesser offences and would be witnesses against the petitioners in the second case wherein graver provisions have been invoked. Thus, those who would otherwise be co-accused, would be witnesses in their case. Had it been a case of counter complaints or cross-cases, the situation would have been different. But in the present case, whereas the first FIR encompasses the entire incident and involves members of both the communities, the second FIR is only a version of a member of one of the communities who has also been arraigned as an accused in the charge-sheet filed in connection with the first FIR. On facts as already discussed hereinabove, it is not possible to state that the second FIR is a rival version of the first FIR. Besides the logic behind registering the 2nd FIR is also quite intriguing. It is stated by the Investigating Officer that as the first informant of the said FIR was in hospital at the relevant time his FIR could not be recorded first in point of time, which is alien to the concept of a first information report. An FIR is the first information of an offence and not an information by a particular informant. When an FIR had already been registered in connection with the offence, the question of recording a second FIR at the instance of one of the injured persons did not arise, more particularly, when the second FIR is not registered as a cross-case or counter complaint. Hence, the said contention also does not merit acceptance.

The contention that the amendment whereby the petitioners seek quashment of the second FIR makes out a totally new case is also dehors the record, because a perusal of the contents of the un-amended memo of petition in Special Criminal Application No. 1679 of 2008 clearly shows that necessary averments for grant of such relief are already made extensively. True it is that no relief for quashing the 2nd FIR was prayed for initially, except qua one of the petitioners, however, addition of such prayer subsequently does not change the complexion of the case as basic averments were always there and the respondents knew that they were required to deal with them.

The other principal contention urged on behalf of the petitioners was that as on the face of it the investigation has not been fair and impartial and is also vitiated by mala fides and irregularity, further investigation by CBI may be ordered. Examining the merits of this contention, in the case at hand the second FIR is filed in respect of the same incident, though the first FIR has been filed by a police officer and the 2nd by an injured witness. The injured person is an accused insofar as the first FIR is concerned. Before this Court, the prosecution and the respondents have made all attempts to show that both the incidents are different, and have occurred at different times and at different places. But the record speaks otherwise. As noted hereinabove, from the injury certificates of the persons who are stated to have sustained injuries in the first incident, it is apparent that the time stated by them before the medical officer at the first available opportunity corresponds to the time of the incident which is alleged to have occurred subsequently. Though the prosecution has sought to make out a case that when the police arrived at the spot the first incident was over and the crowds had dispersed, despite specific query being raised by the Court, nothing has been pointed out as to how the injured reached the hospital and who called the ambulances. The statements of some of the injured witnesses who allegedly sustained injuries during the so-called first incident clearly indicate that the police had arrived at the spot when the clashes were going on and had resorted to lathi-charge and firing and the ambulances had also come thereafter. The statements of the police witnesses also indicate that the ambulances were summoned by the police and that there were several injuries due to police firing and lathi-charge, however, the charge-sheet filed in respect of both the FIRs do not refer to any injuries due to lathi-charge or police firing, which gives cause for concern. Besides, though in the alleged second incident, persons belonging to the Koli Patel community are stated to be aggressors who had confined persons belonging to the Bharwad community in their houses and set the houses on fire, it is surprising that not a single witness named in the charge-sheet belongs to the Bharwad community and despite the fact that statements of witnesses reveal that persons belonging to both the communities have sustained injuries, in the charge-sheet as well as the statements placed on record by the prosecution not a single person belonging to the Bharwad community is shown to have sustained injuries. Surprisingly, though the witnesses refer to names of the Bharwads whose houses were set on fire after shutting them in, none of the persons belonging to the Bharwad community are cited as witnesses nor are their statements recorded. This is the nature of the investigation carried out in respect of C.R. No. I-154 of 2008. Also despite the fact that statements of some of the accused persons belonging to the Koli Patel community have been recorded as witnesses in respect of C.R. No. I-155 of 2008 and even such persons, including the informant of C.R. No. I-155 of 2008 are shown as absconding accused in the charge-sheet filed in connection with C.R. No. I-154 of 2008. Besides, though categorical averments have been made in the petitions that the absconding accused of C.R. No. I-154 of 2008 have been attending court proceedings in the company of the Investigating Officer, the said averments have not been dealt with in the affidavit-in-reply filed on behalf of the respondents which bolsters the case of the petitioners that the investigation is not fair and impartial.

25.1 Another disturbing aspect of the matter is that when in respect of the second FIR pertaining to the alleged first incident, the informant was in a position to name all the accused belonging to the Bharwad community along with their father''s name and surname, it is surprising that in the investigation carried out by the Investigating Officer no statement of any person belonging to the Bharwad community naming any person belonging to the Koli Patel community as having taken part in the incident has been recorded. Thus, it does appear that the investigation is one-sided and statements of witnesses belonging to only one community have been recorded and the members of the other community have been totally excluded while recording statements indicating bias in favour of one community and against the other. It may also be noted that in Special Criminal Application No. 1679 of 2008 and other matters, serious allegations have been made as regards the manner in which investigation has been made, however, despite the fact that affidavit-in-reply has been filed by the Investigating Officer, he has chosen to remain silent qua the said averments, hence the said averments remain uncontroverted and considering the nature of the averments made the same can be accepted as true and correct.

25.2 It may also be noticed that though in the charge-sheet in respect of C.R. No. I-154 of 2008 several Koli Patels have been arraigned as accused, many of them are not named by any witnesses in the statements annexed with the charge sheet. Hence, the investigation does not reveal as to how the said persons have been implicated in the offence in question. In the face of such investigation such accused would certainly go scot-free, which clearly indicates the nature of investigation which has been carried out qua the said FIR. The facts reveal that firstly, the offence is bifurcated into two offences, one serious in nature and the other a much diluted one. Even in the diluted offence, though certain persons belonging to the Koli Patel community have been named as accused, no material worth the name has been collected to connect most of them with the offence in question; consequently there is nothing to indicate as to how the said names came to be revealed. Besides, surprisingly all the accused belonging to the Koli Patel community are shown to be absconding accused in the charge-sheet filed against some of the accused belonging to the Bharwad Community, despite the fact that they are witnesses in the second FIR and their statements have been recorded by the Investigating Officer. It may also be noted that despite serious allegations of mala fide and bias having been made against the investigating agency, except for a bald denial none of the averments made in the petitions/applications have been dealt with. The learned Counsel is therefore, justified in contending that there is over-action in relation to the second FIR and inaction insofar as the first FIR is concerned. The resultant effect of the poor investigation carried out in connection with the first FIR would most likely be that all the accused of the first FIR would be acquitted and it would be only the accused of the second FIR who belong to the petitioners'' community, who would have to face prosecution. The prejudice to the petitioners would be that though the incidents are part of the same transaction, they would have to face two prosecutions. Not only that, persons who would otherwise be co-accused, would be witnesses against them in the case arising out of the second FIR, which would cause immense prejudice to them. Thus, the contention raised on behalf of the respondents that no prejudice would be caused to them because Section 302 has been deleted from the first FIR does not merit acceptance. The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this Court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue.

25.3 Curiously, as noted earlier, the Investigating Officer has already filed a charge sheet against twelve of the petitioners for the offences under Sections 147, 148, 149, 337, 427 IPC and Sections 3 and 7 of the Damages to Public Property Act and Section 135 of the Bombay Police Act, 1951 in Bavla Police Station I-C.R. No. 154 of 2008 on 29.3.2009. However, as per the communication dated 2.9.2009 of Mr. N.G. Saiyed, Circle Police Inspector, Dholka, which has been placed on record by the learned Additional Public Prosecutor, no evidence has been found against the said accused in connection with the said offences, hence, as per the discussion with the Dy. S. P., Dholka, the said officer has agreed to submission of a report u/s 169 of the Code. This again is something alien to criminal jurisprudence, inasmuch as the investigating agency upon conclusion of investigation, having collected evidence against the accused has formed an opinion u/s 170 of the Code and submitted a charge sheet u/s 173(2) of the Code against the accused, now, for some inexplicable reason, which is not far to seek, without any further investigation, on the basis of the very material is contemplating submitting a final report forming an opinion u/s 169 of the Code against the very same accused. Whether such a course of action is permissible in law is itself doubtful, however, this Court is not required to examine the said issue in these proceedings, and hence, the Court refrains from commenting on the legality of the same. What is surprising is that if as stated by the Investigating Officer there was no evidence to connect the said accused with the crime in question, on what basis was the charge-sheet filed in the first place.

25.4 The facts and circumstances noted hereinabove, clearly lead to the conclusion that the investigation in respect of the first FIR being C.R. No. I-154 of 2008 has not been carried out in a fair and impartial manner. In the premises, this Court deems it expedient in the interest of justice that the investigation be transferred to some other agency. The petitioners have prayed that the investigation be transferred to an Investigating Agency so specifically constituted under orders of this Court as a Special Investigating Team or to the Central Bureau of Investigation. Considering the nature of the case, in the opinion of this Court this is not a case, which would require investigation by the CBI, nor does the Court deem it fit to constitute a Special Investigating Team. This Court is of the view that the ends of justice would be met if the investigation were handed over to an agency other than the agencies which had earlier carried out investigation in respect of both the FIRs. It is clarified that this Court has not gone into the allegations of mala fides against the concerned Minister. Suffice it to state that the concerned Minister has filed an affidavit denying the allegations made in the petitions and no rejoinder is filed against the same. Also during the course of hearing of the matters the question of mala fide was not seriously argued.

The learned advocates for the respondents had invited the attention of the Court to the fact that the applicants of Criminal Miscellaneous Application No. 8361 of 2009 are absconding accused and as such their application should not be entertained. It is true that ordinarily this Court would not entertain applications filed by absconding accused. But considering the nature of the relief claimed in all the petitions/applications, it cannot be gainsaid that the relief granted in case of the other petitioners/applicants would in any case be applicable to all the petitioners/applicants, hence no useful purpose would be served by rejecting the said application.

In view of the above discussion, the petitions/applications succeed and are hereby allowed. The first information report registered vide Bavla Police Station I-C.R. No. 155 of 2008 as well as all proceedings emanating therefrom are hereby quashed. However, the material collected by the Investigating Officer during the course of investigation of the second FIR may be clubbed together with the first FIR to the extent the same is feasible. The investigation in respect of the first information report registered vide Bavla Police Station I-C.R. No. 154 of 2008 is transferred to the State CID Crime Branch. Both the Investigating Officers of the aforesaid FIRs shall hand over the investigation papers to the new investigating agency. The Investigating Officer who is entrusted with the investigation shall carry out further investigation in Bavla Police Station I-C.R. No. 154 of 2008 as it stood earlier prior to the report for deletion of Section 302 IPC. It is clarified that quashing of the first information report registered vide Bavla Police Station I-C.R. No. 155 of 2008 does not mean that the accused in respect of the said FIR shall stand discharged of the offences. They shall now face the said charges in the first information report registered vide Bavla Police Station I-C.R. No. 154 of 2008. The accused who are arrested in connection with Bavla Police Station I-C.R. No. 155 of 2008 shall stand arrested in connection with Bavla Police Station I-C.R. No. 154 of 2008. It is clarified that the right of the said accused to apply for bail shall, in no manner, be prejudiced by this order. Rule is made absolute accordingly in each of the petitions/applications.