Allahabad High Court
Rahul Kumar Gaur @ Rahul Sharma vs State Of Up And Another on 13 October, 2020
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD ''A.F.R.' Court No. - 6 Case :- APPLICATION U/S 482 No. - 15206 of 2020 Applicant :- Rahul Kumar Gaur @ Rahul Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Singh,Ashish Srivastava Counsel for Opposite Party :- G.A. Hon'ble Ravi Nath Tilhari,J.
1. Heard Sri Jitendra Singh, learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 1.2.2020 passed by the Additional Sessions Judge, Court No. 11, Aligarh passed in Criminal Revision No. 200 of 2018 (Rahul Sharma Vs. State of U.P. and another) and the summoning order dated 19.9.2016 under Sections 302/120B IPC as well as the proceedings of Complaint Case No. 194/12 of 2015, New No. 16705 of 2016, (Dharmveer Vs. Rahul and others) pending before the Chief Judicial Magistrate, Aligarh, District Aligarh.
3. Brief facts of the case as per the petition are that on 19.10.2013 the applicant and his brother, Naresh Chand were coming to home on Motor Cycle. They were assaulted by the son of opposite party no.2 and his grandsons, causing injury to them due to which Naresh Chand died. The applicant's father lodged an F.I.R. on 20.10.2013 registered as Case Crime No. 1333 of 2013 under Sections 302, 120B IPC, Police Station Kwarsi, District Aligarh. The investigating officer submitted the charge sheet against the son of opposite party no.2 and his granddaughter on 9.1.2014 where upon Additional Session Judge, Court No.9, Aligarh took cognizance and charges were framed on 16.5.2015.
4. The opposite party no.2/complainant filed an application No. 684/11/2013 (Dharmveer Vs. Rahul Sharma and others) under Section 156 (3) Cr.P.C. making allegations that the applicant with two other persons had killed his own brother Naresh Chand and falsely implicated the son of opposite party no.2, and her granddaughter. The Chief Judicial Magistrate directed for registration of the F.I.R. vide order dated 25.1.2014 and in pursuance thereof F.I.R. in Case Crime No. 1333A/2013 under Sections 302/120B IPC, P.S. Kwarsi, District Aligarh was lodged on 31.1.2014. The Investigating Officer submitted final report dated 12.10.2014 against which the Complainant/opposite party no.2 filed a protest petition, registered as Case No. 194/12/2015, New No. 16705 of 2016, (Dharmveer Vs. Rahul and others), on which summoning order dated 19.9.2016 was passed against the applicant. The Criminal Revision No. 200 of 2016 (Sri Rahul Sharma Vs. State of U.P. and another) filed against the summoning order was rejected by the learned Additional District and Sessions Judge, Court No.11, Aligarh.
5. Learned counsel for the applicant submits that the summoning order is bad inasmuch as the Magistrate has not weighed the evidence and has passed the order without due application of judicial mind. The second FIR was lodged as a counter blast to the FIR lodged by the applicant's father. His further submission is that the allegations in the complaint are false and concocted story has been set up. In fact the son and grand daughter of the complainant committed murder of Naresh Chand and there was no motive for the applicant to commit murder of Naresh Chand. His further submission is that as the FIR in case Crime No. 1333 of 2013 under Sections 302, 120B IPC had already been lodged by the present applicants with respect to the incident of murder of Naresh Chand, the FIR/protest-treated as complaint case filed by the complainant opposite party no.2 herein was not maintainable and the Magistrate ought not to have taken cognizance thereon and ought not to have passed order of summoning. He submits that the summoning order passed by the Magistrate deserves to be quashed along with the order passed in revision.
6. Learned A.G.A. submits that the summoning order has been passed on consideration of the material before the Magistrate finding that the case for summoning of the accused on the basis of the said material was made out, prima facie. He further submits that the complaint could be filed notwithstanding the fact that the present applicant had lodged the FIR earlier in point of time. The complaint could not be said to be not maintainable. He submits that the summoning order and the order passed in revision are perfectly legal and justified and do not call for any interference by this Court in the exercise of jurisdiction under Section 482 Cr.P.C.
7. I have considered the submissions as advanced by learned counsel for the applicant, learned A.G.A. and perused the material brought on record.
8. The submission of the learned counsel for the applicant that once the FIR was lodged by the applicant with respect to the same incident in Case Crime No. 1333 of 2013 under Section 302 IPC, and the cognizance has been taken, the second FIR at the instance of opposite party no.2 with respect to the same incident was not maintainable, is legally not acceptable and deserves rejection.
9. In Surendra Kaushik and others Vs. State of U.P. and others, (2013) 5 SCC 148, the question was "whether after registration of FIR and commencement of the investigation, a second FIR relating to the same incident on the basis of a direction issued by the learned Magistrate under Section 156(3) of the Code, could be registered?", the Hon'ble Supreme Court held that it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. The prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible. It is apt to reproduce paragraph Nos. 11 to 24 of Surendra Kaushik (supra) as under:-
"11. If the primary requirement is satisfied, an FIR is registered and the criminal law is set in motion and the officer-in-charge of the police station takes up the investigation. The question that has emerged for consideration in this case is whether after registration of the FIR and commencement of the investigation, a second FIR relating to the same incident on the basis of a direction issued by the learned Magistrate under Section 156(3) of the Code can be registered.
12. For apposite appreciation of the issue raised, it is necessitous to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited. In Ram Lal Narang (supra), this Court was dealing with the facts and circumstances of a case where two FIRs were lodged and two charge- sheets were filed. The Bench took note of the fact that the conspiracy which was the subject-matter of the second case could not be said to be identical with the conspiracy which was the subject- matter of the first one and further the conspirators were different, although the conspiracy which was the subject-matter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subject-matter of the second case. After adverting to the various facets, it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view, the Court did not find any flaw in the investigation on the basis of the subsequent FIR.
13. In T.T. Antony (supra), it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 170 of the Code, came to hold that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code and, therefore, 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. It was further observed that: (T.T.Antony case, SCC p. 197 para 20) "20...... 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 [of the Code].
14. It is worth noting that in the said case, the two-Judge Bench explained and distinguished the dictum in Ram Lal Narang by opining that the Court had 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 further proceeded to state that: (T.T. Antony case, SCC p 198, para 21) "21........ 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 [since] the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually.
15. Thereafter, the Bench explained thus: (T.T. Antony case, SCC p 198, para 21) "21.........The 1973 Cr.O.C. 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 under Section 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 under Section 173 Cr.P.C. will be irregular and the court cannot take cognizance of the same."
16. In Upkar Singh a three-Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony. The larger Bench took note of the fact that a complaint was lodged by the first respondent therein with Sikhera Police Station in Village Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making certain allegations against the appellant therein and some other persons. On the basis of the said complaint, the police had registered a crime under Sections 452 and 307 IPC. The appellant had lodged a complaint in regard to the very same incident against the respondents therein for having committed offences punishable under Sections 506 and 307 IPC as against him and his family members. As the said complaint was not entertained by the police concerned, he, under compelling circumstances, filed a petition under Section 156 (3) of the Code before the Judicial Magistrate, who having found a prima facie case, directed the concerned police station concerned to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction, Crime No. 48-A of 1995 was registered for offences punishable under Sections 147, 148, 149 and 307 IPC.
17. Challenging the direction of the Magistrate, a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge, a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court, following its earlier decision in Ram Mohan Garg v. State of U.P., dismissed the revision. While dealing with the issue, this Court referred to para 18 of T.T. Antony and noted how the same had been understood: (Upkar Singh case, SCC p. 296, para 11) "11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter- case is not registrable and no investigation based on the said second complaint could be carried out."
18. After so observing, the Court held that the judgment in T.T. Antony really does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony and explained thus: (Upkar Singh case, SCC p. 297, para 16) "16........Having carefully gone through the above judgment, we do not think that this Court in T.T. Antony v. State of Kerla has precluded an aggrieved person from filing a counter-case as in the present case."
To arrive at such a conclusion, the Bench in Upkar Singh case referred to para 27 of the decision in T.T. Antony wherein it has been stated that: Upkar Singh case, SCC p. 297, para 16) "16...... '27....... 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 under Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 [of the Code] or under Articles 226/227 of the Constitution.' (T.T. Antony case, SCC p. 200)"
(emphasis in original) Thereafter, the three-Judge Bench ruled thus: (Upkar Singh case, SCC pp. 297-98, para 17)
"17.........In our opinion, this Court in that case only held 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 because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident."
19. Be it noted, in the said verdict in Upkar Singh case, reference was made to Kari Choudhary v. Sita Devi wherein it has been opined that (Upkar Singh case, SCC p. 298, para 18) "18.........'11....... there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried [out] under both of them by the same investigating agency. (Kari Choudhary case, SCC p. 717, para 11)"
"11. Reference was made to the pronouncement in State of Bihar v. J.A.C. Saldanha wherein it has been highlighted that the power of the Magistrate under Section 156 (3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the Police Act."
20. It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang and stated thus: (Upkar Singh case, SCC p. 299, para 22) "22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) also shows that even in cases where a prior complaint is already registered, a counter-complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court did not express any opinion either way."
Explaining further, the Court in Upkar Singh case observed (in para 23) that if the law laid down by this Court in T.T. Antony is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.
21. In Pandurang Chandrakant Mhatre the Court referred to T.T. Antony Ramesh Baburao Devaskar v. State of Maharashtra and Vikram v. State of Maharashtra and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopaedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW-5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.
22. In Babubhai this Court (in para 21), after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.
23. It is worth noting that in Babubhai case, the Court expressed the view that the High Court had correctly reached the conclusion that the second FIR was liable to be quashed as in both the FIRs, the allegations related to the same incident that had occurred at the same place in close proximity of time and, therefore, they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."
10. In the case of P. Sreekumar v. State of Kerla AIR 2018 Supreme Court 1482 the Hon'ble Supreme Court has held that there is no prohibition in law to file the second FIR and once it is filed, such FIR is capable of being taken note of and tried on merits in accordance with law. It was for the reasons interalia that the second FIR was not filed by the same person, who had filed the first FIR; it was filed as a counter complaint; the number of accused persons and the set of allegations were different.
11. It is apt to reproduce para Nos. 29 to 32 of P. Sreekumar (Supra) as under :-
"29) Their Lordships after examining all the previous case laws on the subject laid down the following proposition of law in the following words speaking through Justice N. Santosh Hegde:
"23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimate right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter-complaint is permissible.
25. In the instant case, it is seen in regard to the incident which took place on 20-5-1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value."
30) The aforesaid principle was reiterated by this Court (Two Judge Bench) in Surendra Kaushik and others v. State of U.P. and others, (2013) 5 SCC 148: (AIR 2013 SC 3614) in the following words:
"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."
31) Keeping the aforesaid principle of law in mind when we examine the facts of the case at hand, we find that the second FIR filed by the appellant against respondent No.3 though related to the same incident for which the first FIR was filed by respondent No.2 against the appellant, respondent No.3 and three Bank officials, yet the second FIR being in the nature of a counter-complaint against respondent No.3 was legally maintainable and could be entertained for being tried on its merits.
32) In other words, there is no prohibition in law to file the second FIR and once it is filed, such FIR is capable of being taken note of and tried on merits in accordance with law."
12. From the aforesaid judgments of Hon'ble the Supreme Court in Surendra Kaushik (Supra) and P. Sreekumar (Supra) it is very well settled that the lodgement of two FIRs is not prohibited in law. The concept of sameness has a restricted meaning which does not encompass filing of counter FIR relating to the same or connected cognizable offence. Rival versions in respect of the same incident do take different shapes and in that event lodgemet of two FIR's is permissible.
13. In the case at hand in the two FIR the accused persons are different. The incident is same but the informants are different. The version of both the FIR's is different. The two FIRs are on different set of facts. There is no legal bar as the concept of sameness is not attracted. The FIR is a counter FIR and is capable of taking note of and tried on merits as per law.
14. At the stage of summoning, the Magistrate is required to apply his judicial mind only with a view to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, as has been laid down by Hon'ble the Supreme Court in the case of R.R. Kapur Vs. State of Panjab, reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal, reported in 1992 SCC 426. The power under Section 482 Cr.P.C. is exercised by the High Court only in exceptional circumstances and only when a prima facie case is not made out against the accused persons. The disputed defence of the accused cannot be considered at this stage.
15. In ''Sonu Gupta versus Deepak Gupta', reported in (2015) 3 SCC 424, the Hon'ble Supreme Court has held as under in paragraph 8:-
"8...... At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence or in other words to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not."
16. From the perusal of record and the summoning order it cannot be said that no cognizable offence is made out against the applicants on the basis of the material available before the Magistrate for summoning. The Magistrate was satisfied that a prima-facie case for summoning was made out and such satisfaction is based on the material on record. Learned counsel for the applicants could not demonstrate as to how the summoning order suffers from illegality or perversity or improper exercise or any case for summoning was not made out even prima facie.
17. The submission of learned counsel for the applicant that no such incident occurred and the applicant has been falsely implicated is a disputed question of fact which cannot be determined in these proceedings at this stage. It requires evidence and can be ascertained only during the trial. In Harshendra Kumar versus Rebatilata Koley & others (2011) 3 SCC 351, the Hon'ble Supreme Court has held that it is fairly well settled that while exercising inherent jurisdiction under Section 482 Cr.P.C. Or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of the accusations.
18. The order passed by the learned Magistrate is in conformity with the settled law. I do not find any illegality in the order under challenge. The prayer for quashing the summoning orders and further proceedings of the complaint case is refused.
19. This application under Section 482 Cr.P.C. is hereby dismissed.
20. No order as to costs.
(Ravi Nath Tilhari,J.) Order Date :- 13.10.2020 VKG