Delhi High Court - Orders
Parveen Gupta vs State Of Nct Of Delhi And Anr on 27 September, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 3016/2024 & CRL.M.A.29324/2024, CRL.M.A.
29325/2024
PARVEEN GUPTA .....Petitioner
Through: Mr. Govind Rishi, Advocate &
Ms. Kriti Krishana, Advocate via
video conferencing.
versus
STATE OF NCT OF DELHI AND ANR. .....Respondents
Through: Mr. Sanjeev Bhandari, ASC for the
State along with Ms. Charu Sharma,
Mr. Arijit Sharma, Mr. Vaibhav Vats,
Mr, Nikunj Bhandari, Advocates with
SI Naveen Dahiya, Special
Staff/OND.
Mr. Sunil Dalal, Sr. Adv. along with
Mr. Tushar Rohmetra, Mr. Nikhil
Beniwal, Mr. Navish Bhati, Mr.
Mahabir Singh, Ms. Shipra Bali, Ms.
Mudabbera Zaheen, Mr. Yashpriya
Sahran, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 27.09.2024 By way of the present petition filed under Article 226 of the Constitution of India read with section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 ('BNSS'), the petitioner seeks quashing of the FIR No. 507/2024 dated 11.08.2024 registered under sections 308(2)/351(3)/3(5) of the Bharatiya Nyaya Sanhita 2023 ('BNS') at P.S.: Alipur, Delhi.
2. Mr. Govind Rishi, learned counsel appearing for the petitioner submits, that the petitioner had filed a complaint dated 10.08.2024 with the This is a digitally signed order. W.P.(CRL) 3016/2024 Page 1 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:14 police, which culminated in the registration of FIR No. 502/2024 dated 11.08.2024 under sections 333/305/308(4)/351(2)/3(5) of the BNS at P.S.: Alipur, Delhi against respondent No. 2. He submits that FIR No. 507/2024, which is subject matter of the present quashing petition, was registered by respondent No. 2 against the petitioner as a counterblast to FIR No. 502/2024.
3. In support of his plea, Mr. Rishi has drawn the attention of this court to what has been recorded in FIR No. 502/2024 which was filed by the petitioner, to submit that it refers to an incident that occurred around 10:24 a.m. on 10.08.2024, in the course of which incident respondent No. 2 had threatened the petitioner with dire consequences if the petitioner did not procure a certain sum of money for respondent No. 2 by later that day. Counsel points-out, that FIR No. 502/2024 also narrates what subsequently transpired in the course of that day.
4. Counsel submits, that as an act of retribution to the FIR No. 502/2024 lodged against him by the petitioner, respondent No. 2 made a subsequent complaint to the same police station (i.e. P.S.: Alipur, Delhi) at about 11 p.m. on 11.08.2024, which resulted in registration of FIR No. 507/2024 which also relates to the same incident that occurred on 10.08.2024 at about 10.24 a.m. but narrates a contrary version of what transpired on that day, that being the version of respondent No. 2.
5. Mr. Rishi argues, that a second FIR arising from the same incident could not have been registered by the police, since that is against the principle laid down by the Supreme Court in Babubhai vs. State of This is a digitally signed order. W.P.(CRL) 3016/2024 Page 2 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:14 Gujarat & Ors.,1 which judgment holds that if two FIRs relate to the same incident, the court has to examine the facts and circumstances giving rise to both FIRs, and to apply the 'test of sameness' to find out whether both FIRs relate to the same occurrence or if they are in regard to incidents which are two or more parts of the same transaction. The relevant portion of Babubhai (supra) reads as follows :
"Two FIRs "13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] this Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of conspiracy in both the cases was not the same. This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.
"14. In T.T. Antony v. State of Kerala [(2001) 6 SCC 181 :
2001 SCC (Cri) 1048] this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that : (SCC p. 181d-e) "There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences."
"The investigating agency has to proceed only on the information about commission of a cognizable offence which is 1 2010 12 SCC 254 This is a digitally signed order. W.P.(CRL) 3016/2024 Page 3 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15 first entered in the police station diary by the officer-in-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called "CrPC") and all other subsequent information would be covered by Section 162 CrPC for the reason that it is the duty of the investigating officer not merely to investigate 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 the investigating officer has to file one or more reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the investigating officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) CrPC. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of CrPC."
***** "20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important document. It is the first information of a cognizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 CrPC.
"21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness This is a digitally signed order. W.P.(CRL) 3016/2024 Page 4 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15 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 the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted."
(emphasis supplied)
6. Relying on the Babubhai (supra) learned counsel argues, that in the present case, the 'test of sameness' is satisfied; and therefore the second FIR bearing FIR No. 507/2024 is liable to be quashed.
7. Issue notice.
8. Mr. Sanjeev Bhandari learned ASC appears on behalf of respondent No. 1 and Mr. Sunil Dalal, learned senior counsel appears on behalf of respondent No. 2 on advance copy; accept notice; and seek time to file status report and reply respectively.
9. Let status report/reply be filed within 04 weeks; rejoinder/response thereto, if any, be filed within 03 weeks thereafter; with copies to the opposing counsel.
10. Mr. Bhandari and Mr. Dalal jointly submit, that Babubhai (supra) follows the principle enunciated in T.T. Antony vs. State of Kerala,2 which only holds that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect to 2 (2001) 6 SCC 181 This is a digitally signed order. W.P.(CRL) 3016/2024 Page 5 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15 the same cognisable offence or the same occurrence giving rise to one or more cognisable offences.
11. Mr. Dalal however submits, that it has also been clarified by the Supreme Court in Upkar Singh vs. Ved Prakash & Ors.,3 that T.T. Antony (supra) does not preclude an aggrieved person from filing a 'counter-case' nor does it preclude the registration of an FIR based on such counter-case. Learned senior counsel submits that if an aggrieved person was precluded from filing a counter-case, it would have serious consequences since the real accused may take the first opportunity to lodge a false complaint and have it registered as an FIR,thereby closing the chance of the actual victim to lodge a complaint giving his version of the same incident. The relevant portion of Upkar Singh (supra), as referred-to by learned senior counsel, is extracted below :
"16. Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] has precluded an aggrieved person from filing a counter-case as in the present case. This is clear from the observations made by this Court in the abovesaid case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] in para 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) CrPC, this is what the Court observed: (SCC p. 200) "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 under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of 3 (2004) 13 SCC 292 This is a digitally signed order. W.P.(CRL) 3016/2024 Page 6 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15 power under Section 482 CrPC or under Articles 226/227 of the Constitution."
"17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. 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."
***** "23. Be that as it may, if the law laid down by this Court in T.T. Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] 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 legitimated 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 [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] 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."
(emphasis supplied) This is a digitally signed order. W.P.(CRL) 3016/2024 Page 7 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15
12. Learned ASC and learned senior counsel jointly submit, that in the present case, the complaint filed by respondent No. 2 leading to the registration of FIR No. 507/2024 was in the nature of a 'counter-case' based on which the police were well within their right to register the second FIR.
13. Re-notify on 10th December 2024.
14. Considering the circumstances of the case, and the submission made by learned counsel for the parties, at this stage, the police may continue the investigation of both FIRs.
ANUP JAIRAM BHAMBHANI, J SEPTEMBER 27, 2024/ss This is a digitally signed order. W.P.(CRL) 3016/2024 Page 8 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2024 at 16:13:15