Allahabad High Court
Jaykarn Singh And 5 Ors vs State Of U.P. And Another on 15 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4797
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 25.09.2018 Delivered on 15.11.208 Court No. - 44 Case :- APPLICATION U/S 482 No. - 30062 of 2018 Applicant :- Jaykarn Singh And 5 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dhirendra Singh,Anoop Kumar Mishra,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Ram Kishor Gupta Hon'ble Rajeev Misra,J.
1. This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 6th November, 2017 passed by the Chief Judicial Magistrate, Hamirpur in Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaykaran Singh & Others), under Sections 147, 148 and 302 I.P.C., Police Station Kurara, District Hamirpur as well as the entire proceedings of the above mentioned complaint case.
2. Heard Mr. Rajiv Lochan Shukla, learned counsel for the applicants, learned A.G.A. for the State and Mr. Ram Kishor Gupta, learned counsel appearing for the opposite party no.2.
3. The applicants have also challenged the order dated 26th July, 2018 passed by the Additional Sessions Judge/Special Judge (S.C./S.T. Act), Hamirpur in Criminal Revision No. 5 of 2018 (Jaykaran Singh & Others vs. Ram Sarovar & Another), whereby the aforesaid criminal revision preferred against the summoning order dated 6th November, 2017 has been dismissed.
4. From the record, it appears that an incident occurred on 12th May, 2013. In respect of the aforesaid incident, firstly a first information report dated 12th March, 2013 was lodged by the applicant no.1 herein, namely, Pramod Kumar at 1800 hrs (6:00 p.m.) with the allegation that on account of the criminality committed by the accused persons named in the first information report, one Raman Singh has died on the spot. This first information report came to be registered as Case Crime No. 701 of 2013 under Sections 147, 148, 149, 302, 120B I.P.C. Police Station Kurara, District Hamirpur. Another first information report dated 12th May, 2013 was lodged by the opposite party no.2 herein at 18:30 hrs. (6:30 p.m.) in which it was alleged that on account of the criminality committed by the accused persons named in the first information report, one Munim Singh has died. This first information report came to be registered as Case Crime No. 701A of 2013, under Sections 147, 148, 149, 302 I.P.C., Police Station Kurara, District Hamirpur.
5. Autopsy of the deceased Munim Singh was conducted and accordingly, the postmortem report was submitted on 13th May, 2013.
6. The Police conducted the statutory investigation of Case Crime No. 701A of 2013 and upon completion of the same submitted a final report dated 17th August, 2013. Feeling aggrieved by the final report dated 17th August, 2013, the opposite party no.2 herein who is also the first informant of the F.I.R. dated 12th May, 2017 giving rise to Case Crime No. 701A of 2013 filed protest petition dated 4th October, 2013. On the protest petition, the court concerned passed an order dated 22nd February, 2014, whereby the final report dated 17th August, 2013 was rejected and a direction was issued to the Police to conduct further investigation. Upon further investigation, the Police submitted the second report dated 11th April, 2013, confirming the earlier final report dated 17th August, 2013.
7. At this stage, the complainant-opposite party no. 2 herein filed a complaint dated 1st September, 2014 in respect of the same incident dated 12th May, 2013 qua which the first information report dated 12th May, 2013 was lodged and was registered as Case Crime No. 701A of 2013 under Sections 147, 148, 149, 302 I.P.C. The aforesaid complaint was registered as Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaikaran Singh & Others), Police Station Kurara, District Hamirpur.
8. During the pendency of the aforesaid complaint case, the first informant of the first information report dated 12th May, 2013, which was registered as Case Crime No. 701A of 2013 i.e. the complainant-opposite party no.2 herein filed a protest petition dated 6th May, 2017 against the second police report dated 11th April, 2014 submitted in Case Crime No. 701A of 2013. This protest petition came to be registered as Misc. Case No. 60/12/2011 (Ram Sarovar vs. Jaikaran Singh & Others).
9. As the complaint dated 1st September, 2014 was entertained and was registered as Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaykaran Singh & Others), Police Station Kurara, District Hamirpur, the Chief Judicial Magistrate, Hamirpur appears to have passed an order dated 19th August, 2017, whereby the complainant was directed to produce all the witnesses of fact for recording their statements under Section 202 Cr.P.C. This order of the Chief Judicial Magistrate was in conformity with the provisions of Section 202 (2) Cr.P.C.
10. Subsequent to the order dated 19th August, 2017, the statement of the complainant-opposite party no.2 Ram Sarovar and four witnesses namely, Balram, Rohit, Gyan Singh and Kunwar Kant were recorded under Sections 200 and 202 Cr.P.C. respectively.
11. Thereafter, the Chief Judicial Magistrate, Hamirpur passed the summoning order dated 6th November, 2017, whereby the present applicants were summoned under Sections 147,148 and 302 I.P.C. in Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaykaran Singh & Others), under Sections 147, 148 and 302 I.P.C., Police Station Kurara, District Hamirpur.
12. The protest petition dated 6th May, 2017 filed by the first informant of Case Crime No. 701A of 2013 against the second report dated 11th April, 2014 submitted by the Police came to be decided vide order dated 20th May, 2017. The second report dated 11th April, 2014 submitted by the Police was rejected and the protest petition dated 6th May, 2017 filed by the complainant-opposite party no.2 was directed to be treated as a complaint. Thus, from the aforesaid it is apparent that the Chief Judicial Magistrate, Hamirpur took cognizance under Section 190 (1) (a) Cr.P.C. in the proceedings arising out of Case Crime No. 701-A of 2013.
13. Aggrieved by the summoning order dated 6th November, 2017 passed by the Chief Judicial Magistrate, Hamirpur, the present applicants filed a criminal revision before the District and Sessions Judge, Hamirpur. The same was registered as Criminal Revision No. 5 of 2018 (Jaykaran Singh & Others vs. Ram Sarovar & Another). The said criminal revision came to be dismissed by the Additional Sessions Judge/Special Judge (S.C./S.T. Act), Hamirpur vide order dated 26th July, 2018. Thus aggrieved by the revisional order dated 26th July, 2018, the summoning order dated 6th November, 2017 as well as the entire proceedings of the above mentioned complaint case, the applicants have now approached this Court by means of the present application under Section 482 Cr.P.C.
14. Mr. Rajiv Lochan Shukla, learned counsel for the applicants submits that the first information report in respect of the incident in question had been registered as Case Crime No. 701A of 2013 under Sections 147, 148, 149, 302 I.P.C., Police Station Kurara, District Hamirpur and the matter had been invested by the Police resulting in the submission of the final report dated 17th August, 2013. Against the said final report a protest petition dated 4th October, 2013 was filed, which came to be allowed vide order dated 22nd October, 2013. Pursuant to the order dated 22nd October, 2013, the Police further investigated the matter and thereafter submitted a second report dated 11th April, 2014 confirming the earlier report dated 17th August, 2013. It is during the pendency of the aforesaid proceedings that the complaint dated 1st September, 2014 giving rise to the present application has been filed. On the aforesaid factual premise, he, thus, submits that the complaint dated 1st September, 2014 filed by the opposite party no.2 is in respect of the same incident which took place on 12th May, 2013 and gave rise to Case Crime No. 701A of 2013 was not at all maintainable. Proper course for the first informant of Case Crime No. 701A of 2013 was to file a protest petition against the second police report dated 11th April, 2014. He further submits that the matter does not rest here. The complainant-opposite party no.2 filed protest petition dated 6th May, 2017 against the second police report dated 11th April, 2014 on which the Chief Judicial Magistrate, Hamirpur passed an order dated 19th August, 2017 whereby the Court directed the complainant to produce all his witnesses as contemplated under sub-section (2) of Section 202 Cr.P.C.. Thereafter the protest petition dated 6th May, 2017 filed by the opposite party no.2 to the second police report dated 11th April, 2014, which came to be registered as Misc. Case No. 7/12/2011 (Ram Sarovar vs. Jaikaran Singh & Others) came to be decided vide order dated 20th May, 2017 and the complainant was directed to get the statement of himself and his witnesses recorded under Sections 200 and 202 Cr.P.C. respectively. The Magistrate vide order dated 20th May, 2017 rejected the second police report dated 14th April, 2014 and directed that the protest petition filed by the opposite party no.2 be registered as a complaint case. Complaint Case No. 2663 of 2014 was consolidated with the aforesaid case. Complaint Case No. 2663 of 2014 was to be the leading file. As case No. 2663 of 2014 is at the stage of recording of evidence under Section 200 Cr.P.C., accordingly, the same was fixed for 3rd July, 2017. It is, thus, urged that two complaint cases on behalf of the same person in respect of the same criminality cannot be allowed to continue.
15. It is next contended by the learned counsel for the applicants that once the first information report has been lodged by the first informant resulting in Case Crime No. 701A of 2013, then there was no occasion before the complainant-opposite party no.2 to file a complaint in respect of the same criminality. To buttress his submission, he has further submitted that there is no provision in the Code of Criminal Procedure under which two complaint cases in respect of the same wrong at the behest of the same person, can be allowed to continue. Thus, it is urged that the continuance of the two complaint cases regarding the same incident at the behest of the same person by the Chief Judicial Magistrate, Hamirpur is not only illegal but also amounts to an abuse of the process of the Court. The opposite party no.2 cannot jump over the consequential proceedings of the first information report dated 12th May, 2013 which was lodged by himself and during the pendency of the same filed another complaint in respect of the same incident, which is otherwise not maintainable.
16. Lastly it is contended that the Chief Judicial Magistrate, Hamirpur was conscious of the fact that the criminality alleged in the complaint is cognizable by the Court of Sessions and therefore, rightly passed the order dated 19th August, 2017 directing the complainant to get examined all the witnesses as required under Sections 202 (2) Cr.P.C. However, the complainant only produced himself and four witnesses, namely, Balram, Rohit, Gyan Singh and Kunwar Kant. Neither the doctor, who conducted the autopsy of the deceased Munim Singh nor the Investigating Officer who conduced the investigation of Case Crime No. 701A of 2013 were produced. As such, the impugned summoning order dated 6th November, 2017 is bad in law.
17. According to the learned counsel for the applicants, there is no provision in the Code of Criminal Procedure, which permits continuation of two complaint cases in respect of the same incident at the behest of the same person. Consequently, the applicants cannot be tried in two criminal cases for the same criminality alleged against the applicants. Mr. Rajiv Lochan Shukla, the learned counsel for the applicant extending his arguments further contends that the entire controversy has erupted on account of the failure on the part of the Magistrate concerned in not taking cognizance under Section 190 (1) (b) of the Code of Criminal Procedure vide order dated 20th May, 2017. In that eventuality, the complaint case arising out of the first information report and the subsequent complaint case could have been tried together. However, in the absence of the aforesaid, the procedure adopted by the Magistrate in consolidating the above mentioned two complaint cases which pertain to the same wrong and by the same person is an abuse of the process of the Court as no purpose shall be achieved by continuing two complaint cases against the same accused persons in respect of the same criminality nor the complainant shall benefit on the account of the aforesaid procedure being adopted by the Magistrate.
18. Mr. Ram Kishor Gupta, the learned counsel appearing for the opposite party no.2 submits that the incident which occurred on 12th May, 2013 is admitted to both the parties as two first information reports were lodged in respect of the same. However, subsequently, a final report was submitted by the Police on the premise that no offence is made out. The veracity of the subsequent proceedings undertaken by the Police after lodging of the first information report dated 12th May, 2013 was doubtful and therefore, the complaint dated 1st September, 2014 was filed. As such the subsequent complaint dated 1st September, 2014, though filed by the same person and in respect of the same occurrence is maintainable. No prejudice can be said to be caused to the applicants when the occurrence is admitted and two persons one from either side have died.
19. The learned A.G.A. has adopted the arguments advanced by the learned counsel for the complainant.
20. The issues involved in the present application are two fold, firstly whether the court below while summoning the applicants by means of the summoning order dated 6th November, 2017 was required to look into the entire material collected during the course of investigation and thereafter upon consideration of the same, summon the applicants. Secondly, whether a second complaint in respect of the same offence by the same person is maintainable. Thirdly, two complaint cases filed by the same party regarding the same incident can be consolidated and tried together or not.
21. Before proceeding to consider the questions which arise for determination in the present case, reference may be made to the term complaint as defined in Section 2 (d) of the Code of Criminal Procedure.
"Section 2................
(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
22. It may be pointed out that the power to take cognizance on a complaint is vested with the Magistrate under Section 190 Cr.P.C. For ready reference Section 190 Cr.P.C. is quoted herein-under:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."
23. According to the learned counsel for the applicants, in the case in hand, the Magistrate after rejecting the second final report has taken cognizance under Section 190 (1) (a) Cr.P.C. There is no provision in the Code of Criminal Procedure which directly permits the Magistrate to look into the material collected by the Investigating Officer at the time of deciding the protest petition filed against a final report. Similarly, there is no judgment of the Apex Court on the subject whereby it has been provided that the Magistrate while deciding the protest petition against the final report and proceeding with the protest petition as a complaint can look into the material collected during the course of investigation before summoning the accused.
24. Mr. Rajeev Lochan Shukla, learned counsel for the applicants has referred to the judgment of the Kerala High Court in the case of Kader S/O Moidunni vs. State of Kerala reported in 1999 Law Suit (KER) 140, wherein the following has been observed in paragraph nos. 6 and 7:
"6. The main question that has to be decided in the case is whether in the nature of the case, the final report filed by the police in Crime No. 147/92 aforementioned should have been taken into account before taking cognizance of the case. No decision of this Court or of the Supreme Court has been placed before me which will throw light on the above aspect. But the learned counsel for the petitioners placed reliance of the decision in Daleep Singh v. Smt. Magan, 1996 Cri LJ 190 (Raj). The contention raised in that case was that the Magistrate was bound to send for the report of the S.H.O. in the matter of final report filed based on the information given by the complainant in the private complaint before taking cognizance. The learned Judge of the Rajasthan High Court who decided the case dealt with the same in some extenso.
7. The court noted that the scope of the enquiry under Section 202 is the ascertainment of the truth or falsity of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused therein from being called upon to face obviously frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all matters he should take into consideration to arrive at the conclusion that he should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S. 200 Cr.P.C. as also of the witnesses examined under Section 202 Cr.P.C. Along with that , he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S. 202 of the Cr.P.C. is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopted a superficial approach.
25. In the light of the law laid down by the Kerala High Court in the aforesaid judgment with which I see no reason to differ it can be safely presumed that there is no prohibition for the Magistrate from looking into the material collected during the course of investigation at the time of the summoning of the accused before taking cognizance under Section 190 (1) (a) Cr.P.C. on the protest petition filed against a final report. However, the Court need not dwell with the aforesaid issue in length and detail as the correctness of the cognizance taken by the Magistrate on the protest petition filed by the complainant-opposite party no.2 against the second police report dated 11th April, 2014 is not in issue. Moreover the material collected by the Investigating Officer during the course of investigation of Case Crime No. 701-A of 2013 pertains to a different case and cannot be looked into by the Magistrate in an another case. The said issue is no longer res integra and stands settled by a Division Bench of this Court in the case of Km. Rinki Versus State of U.P. & Others reported in 2008 (8) ADJ 402 (DB).
26. Now I come to the second issue, as to whether a second complaint in respect of the same offence by the same person can be filed or not?
27. The Code of Criminal Procedure does not contain any strict prohibition that no second complaint in respect of the same criminality can be filed. The Judgment of the Apex Court in the case of T T Antony Versus State of Kerala reported in 2001 (6) SCC 281, however, clearly prohibits the lodging of a second first information report in respect of the same criminality.
26. Mr. Rajeev Lochan Shukla, learned counsel for the applicants on the basis of the aforesaid judgment of the Apex Court submits that once a second first information report regarding the same incident is held to be not maintainable on the same analogy the second complaint should also be held to be not maintainable. As such, the second complaint dated 1st September, 2014 filed by the opposite party no.2 was not maintainable. To substantiate the same he submits that the first information report dated 12th March, 2013 in respect of the incident which occurred on 12th March, 2013 had already been lodged. The Police upon investigation of the aforesaid first information report submitted the final report dated 17th August, 2013. Against the said final report dated 17th August, 2013 a protest petition dated 4th October, 2013 was filed which was allowed vide order dated 22nd February, 2014, whereby the final report dated 17th August, 2013 was rejected with a direction to the Police to conduct further investigation. Upon further investigation the Police submitted the second report dated 11th April, 2014, whereby the earlier report dated 17th August, 2013 was confirmed. Against the second report dated 11th April, 2014, complainant-opposite party no. 2 filed a protest petition dated 6th May, 2017, which came to be allowed vide order dated 20th May, 2017. The protest petition was directed to be treated as a complaint and accordingly, tried as a complaint case.
28. Mr. Rajeev Lochan Shukla, learned counsel for the applicants at this stage invited the attention of the Court to the order dated 20th May, 2017 passed in Misc. Case No. 60/12 of 2011 (Ram Sarovar vs. Jaikaran Singh & Others) whereby the case arising out of the proceedings pursuant to the first information report dated 12th March, 2013 resulting in Case Crime No. 701A of 2013 and the subsequent complaint case filed by the opposite party no.2 registered as Complaint Case No. 2663 of 2014 (Ram Sarovar vs. Jaikaran Singh & Others) under Sections 147, 148 and 302 I.P.C. Police Station Kurara, District Hamirpur were directed to be consolidated/tired together and Complaint Case No. 2663 of 2014 (Ram Sarovar vs. Jaikaran Singh & Others) was to be the leading case.
29. Learned counsel for the applicants submits that this procedure adopted by the Magistrate is contrary to law. He has referred to Sections 210, 323, and 326 Cr.P.C., which provide for consolidation of cross cases. However, in the present case as the two cases are not the cross-version of the same incident nor a State case and a complaint case regarding the same incident but two independent complaint cases regarding the same occurrence by the same person could not have been consolidated or tried together. As already noted above, had the Magistrate taken cognizance under Section 190 (1) (b) of the Code of Criminal Procedure on the protest petition filed against the second police report vide order dated 20th May, 2017, then in that eventuality there was no difficulty in continuing the State case and the complaint case or their consolidation. However, in the present case the Magistrate vide order dated 20th May, 2017 has taken cognizance under Section 190 (1) (a) of the Code of Criminal Procedure on the protest petition filed against the second police report submitted in Case Crime No. 701-A of 2013. Therefore, according to the learned counsel for the applicants, no purpose would be achieved by the parties in continuing the aforesaid two complaint cases. Neither the complainant would be benefited by the aforesaid procedure nor the applicants can be convicted twice for the same wrong as it shall be contrary to the well established principle of law against double jeopardy.
30. It is next urged that by virtue of the provisions contained in Article 14 and Article 21 of the Constitution of India, an accused also has the right to have equal protection of law and further a right to fair trial. The consolidation of two complaint cases lodged by the same person in respect of the same offence clearly infringes the rights of the applicants to have a fair trial. The concept of fair trial cannot be enlarged to the extent that an accused is required to face multiple trials in respect of the same wrong. Such a procedure shall be contrary to the mandate of Article 14 and Article 21 of the Constitution of India.
31. On the aforesaid factual and legal premise the learned counsel for the applicants submits that the summoning order dated 6th November, 2017 and the order dated 26th July, 2018 passed by the revisional court as well as the entire proceedings of the complaint case in which the above mentioned impugned orders have been passed are liable to be quashed by this Court.
32. The Code of Criminal Procedure is not only exhaustive but also a self contained Code. Upon consideration, this Court is of the opinion that in the facts and circumstances of the case the proper course for the Magistrate was to proceed ahead with the complaint case which came into existence subsequent to the order dated 20th May, 2017, whereby the second police report dated 11th April, 2013 confirming the earlier final report dated 17th August, 2013 was rejected vide order dated 20th May, 2017 and it was directed that the case shall proceed as a complaint case. The proceedings, which have commenced subsequent to the second complaint dated 1st September, 2014 filed by the complainant-opposite party no.2 are wholly not maintainable and amount to an abuse of the process of the Court. The Code of Criminal Procedure provides the aggrieved person, the remedy of lodging an F.I.R. in respect of a cognizable offence. In case the F.I.R. is not registered, then the aggrieved person can approach the Magistrate by filing an application under Section 156 (3) Cr.P.C. or by filing a complaint in terms of Section 190 Cr.P.C. However, there is no provision in the Code of Criminal Procedure which permits the complainant to pursue the remedy of lodging of an F.I.R. and before the culmination of the proceedings arising out of the said F.I.R. either way file a complaint.
33. Consequently, the impugned summoning order dated 6th November, 2017 passed by the Chief Judicial Magistrate, Hamirpur in Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaykaran Singh & Others), under Sections 147, 148 and 302 I.P.C., Police Station Kurara, District Hamirpur as well as the order dated 26th July, 2018 passed by the Additional Sessions Judge/Special Judge (S.C./S.T. Act), Hamirpur in Criminal Revision No. 5 of 2018 (Jaykaran Singh & Others vs. Ram Sarovar & Another), are hereby quashed. The complaint giving rise to Complaint Case No. 2663 of 2014 (Ram Sarovar Vs. Jaykaran Singh & Others), in which the summoning order dated 6th November, 2017 was passed, is also dismissed in its entirety. However, the concerned Magistrate is directed to proceed against the applicants in the case arising out of the order dated 20th May, 2017.
34. With the aforesaid directions, the present application is allowed. However, there shall be no order as to costs.
(Rajeev Misra, J.) Order Date :- 15.11.2018 Sushil/-