Allahabad High Court
Sudhir Kumar Alias Sudhir Singh Chauhan ... vs State Of U.P. And 5 Others on 5 December, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 76 Case :- MATTERS UNDER ARTICLE 227 No. - 8614 of 2019 Petitioner :- Sudhir Kumar Alias Sudhir Singh Chauhan And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sudhir Singh Chauhan Counsel for Respondent :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Shri Sudhir Kumar Alias Sudhir Singh Chauhan, petitioner, in person, and Sri P.K. Shahi, learned A.G.A. for the State.
2. The petitioner has preferred this writ petition with a prayer to quash the judgment and order dated 25.06.2019 passed by learned Chief Judicial Magistrate, Farrukhabad, in Criminal Misc. Application Under Section 156(3) Cr.P.C. registered as Case No. 1388/11/18 and seek direction to the learned Chief Judicial Magistrate, Farrukhabad to allow application U/s 156(3) Cr.P.C. dated 20.08.2018 for lodging the case against the respondents/accused persons.
3. The facts in brief which are essential to be stated for adjudication of this application are that the petitioner no.2, who is brother of petitioner no.1 was granted Patta of pond for fisheries by the Sub Divisional Magistrate / Collector, Tehsil Sadar, on 09.08.2016, which is situated over Gata No. 395 and 4Ka in Patta Shivir. Since the respondent no.4-Village Pradhan wanted to grant the Patta in favour of his servant Ravi, therefore, he was annoyed and on 10/11.01.2018, he has poured poison in the pond, due to which the fishes as well as other ecological animals of the pond died. For the said incident, a Tahrir was given on 12.01.2018 to the concerned District Magistrate as well as Superintendent of Police for lodging the F.I.R., under Section 429 IPC readwith relevant sections of Wild Life Protection Act. Pursuant to which, an enquiry was conducted by Sri Shiv Ram, Assistant Director of Fisheries, Fatehgarh, Farrukhabad along with other officers. Subsequently, on 16.01.2018, when the Enquiry Officer came at the place of occurrence for investigation, the accused Surendra Singh tried to throttle the petitioner and some scuffle took place with the petitioner, at that time accused Shailendra Singh Rathore, Zila Mahamantri of B.J.P. as well as several villagers about 60-70 persons were present on the spot. Therefore, for the said incident, another Tahrir was also given on 16.01.2018 by the petitioner before the concerned Superintendent of Police and other higher authorities but the first information report has not been lodged. It has further been contended that the petitioners had approached before this Court by means of Writ C No. 24691 of 2018 for lodging the F.I.R. in which the following order was passed:-
"Heard the petitioner, who appears in person and Shri Deepak Mishra, learned A.G.A. for the State-respondents.
By means of this writ petition the petitioner has come to this Court with the following prayer:
"i) to issue a writ, order or direction in the nature of mandamus directing the respondents no. 3 and 4 to lodge the first information report under Section 307, 504, 506, 323 I.P.C. against the accused/respondent no.5 to 8 at Police Station-Maudarwaja, District-Farrukhabad.
ii) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 1, 2 and 3 to give police protection to protect personal life and liberty and property of the petitioners and their family members.
iii) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
iv) to award the costs of this writ petition to the petitioners."
The petitioner has relied upon a decision of the Supreme Court in the case of Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1 by which it has been held that lodging of an F.I.R. is a fundamental right.
It is to be noted that in case the police authority is not lodging an F.I.R., the petitioner is not remedy less, he can straightaway approach the concerned Magistrate under Section 156(3) of the Cr.P.C. So far as second prayer is concerned, if there is any personal danger to the petitioner, it is always open for him to go to the District Level Security Committee which can consider the threat perception of the petitioner. For the aforesaid prayer writ cannot be issued.
The writ petition is misconceived and it is, accordingly, dismissed."
4. Pursuant to the order dated 31.07.2018 passed in the aforesaid petition, on 20.08.2018, the petitioners moved an application under Section 156(3) Cr.P.C., which has been rejected by order dated 25.06.2019 passed by the concerned Magistrate stating therein that for the incident dated 10/11.01.2018, a case has already been registered as Crime No. 536 of 2018, under Section 429 IPC and due to political rivalry, petitioner again wanted to lodge another case for the same incident/cause of action, therefore, the second F.I.R. cannot be lodged.
5. The petitioner, in person, submits that the impugned order passed by the concerned Magistrate rejecting the application of the petitioner under Section 156 (3) Cr.P.C. is illegal and perverse and the same has been passed without application of mind and law on the subject. In support of his case, he has also placed reliance upon the following judgments of the Apex Court:-
i.) T.T. Antony v. State of Kerala and others reported in (2001) 6 SCC 181;
ii.) Lalita Kumari Vs. Government of U.P. and others reported in 2014 (2) SCC 1.
6. The petitioner, in person, therefore, submits that in view of the settled law as laid down in aforesaid judgments by the Apex Court, the impugned orders passed by the courts below is not sustainable in the eye of law and therefor, the same is liable to be set aside.
7. Mr. P.K. Shahi, learned A.G.A. for the State, per contra, has vehementally opposed the submissions as urged by the petitioner, in person, by submitting that second first information report for the same cause of action/offences/incident could not have been lodged and entertained as law prohibits lodging of the second first information report in respect of the same offence. To bolster the contention that the second FIR could not have been entertained, the learned A.G.A. has commended this Court to the following decisions of the Apex Court:-
(i) In Kari Choudhary Versus Most. Sita Devi & Others; AIR 2002 SC 441;
(ii) T.T. Antony v. State of Kerala and others reported in (2001) 6 SCC 181;
(iii) Pandurang Chandrakant Mhatre and others v. State of Maharashtra reported in (2009) 10 SCC 773;
(iv) Babubhai v. State of Gujarat and others reported in (2010) 12 SCC 254; and
(v) Amitbhai Anil Chandra Shah Vs. Central Bureau of Investigation & Another, reported in (2013) 6 SCC 348.
8. Mr. P.K. Shahi, learned A.G.A. for the State , therefore, submits that in view of the settled law as laid down in various judgments by the Apex Court, the impugned order passed by the court below dated 25.06.2019 cannot be interfered with by this Court and the present petition under Article 227 of the Constitution of India is liable to be dismissed, as the court below has rightly rejected the application filed by the petitioners under Section 156 (3) Cr.P.C., the second first information report against an accused for the same offence, is not maintainable.
9. This Court has considered the submissions as urged by the petitioner, in person, and the learned A.G.A. for the State as well as gone through the entire materials brought on record.
10. Before coming to the merits of the submissions made by the learned counsel for the parties, it would be relevant to refer Chapter XII of the Code, which deals with information to the police and their powers to investigate. As provided under Section 154 of the Code of Criminal Procedure (hereinafter referred as the "Code/Cr.P.C."), every information relating to commission of a cognizable offence, either given orally or in writing is required to be entered in a book, to be kept by the officer-in-charge of the concerned police station. The said FIR, as mandated by law, should pertain to a cognizable case. Section 2(c) of the Code defines "cognizable offence" which also deals with cognizable cases.
11. For ready reference, Sections 2 (c), 154 and 156 (3) Cr.P.C., which are relevant for deciding the present application, read as follows:-
"cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."
12. Perusal of contents of application under Section 156(3) moved earlier for lodging Case Crime No. 536 of 2018, Under Section 429 IPC again reiterated the contents of application moved, subsequently, after the order 31.07.2018 passed by this Court. The second application under Section 156 (3) is appears to be offshoot of the earlier incident for which, the F.I.R. has already been lodged.
13. If the primary requirement is satisfied, an FIR is to be 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 application under Section 156(3) Cr.P.C. for lodging the 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.
14. For apposite appreciation of the issue raised, it is necessary to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited.
15. In Kari Chaudhary (Supra), the Apex Court has observed that of course it is settled law that there cannot be two first information reports against the same accused in respect of same case, but when there are rival versions in respect of same episode, they would normally take the shape of two different first information reports and investigation can be carried on under both of them by the same investigating agency.
16. For ready reference, paragraph nos. 11 and 12 of the judgment of the Apex Court in the case of Kari Choudhary (Supra) read as follows:
"11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is that 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 on under both of them by the same investigating agency. Even that apart, the report submitted by the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court reading the new discovery made by the police during investigation the persons not named in FIR No. 135 are the real culprits. The quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.
12. Even otherwise the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under Sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173(8) of the Code."
(emphasis added)
17. 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 173 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 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.
18. It would be worthwhile to reproduce paragraph nos. 20, 28 and 35, in the case of T.T. Antony (Supra), the Apex Court, which read as follows:
"20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155,156, 157, 162, 169, 170 and 173 Cr.P.C only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. 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 Cr.P.C.
28...........................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 November 25, 1994 at Kuthuparamba was registered again under Section 154 of Cr.P.C. 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 (Crime 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 Cr.P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) Cr.P.C. to the concerned Magistrate. 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 the Cr.P.C. 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.353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.
35. For the aforementioned reasons, the registration of the second FIR under Section 154 of Cr.P.C. on the basis of the letter of the Director General of Police as Crime No.268/97 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crime No.353/94 and Crime No.354/94 for making further investigations and filing a further report or reports under Section 173(8) of Cr.P.C. before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268/97 of Kuthuparamba Police Station against the ASP (R.A.Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside."
(Emphasis added)
19. In Pandurang Chandrakant Mhatre (supra), the Apex Court referred to cases of T.T. Antony (supra), 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 encyclopedia 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.
20. In Babubhai (supra), the Apex Court, after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the applications under Section 156(3) Cr.P.C. and the test of sameness is to be applied to find out whether both the applications under Section 156(3) Cr.P.C. 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 application under Section 156(3) Cr.P.C. for lodging the second F.I.R. is liable to be quashed. However, in case the contrary is proved, where the version in the second application under Section 156 (3) Cr.P.C. 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.
21. In paragraph nos. 14, 17, 20 & 21, in the case of Babubhai (Supra), the Apex Court has observed as follows:-
"14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292, this Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the 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 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.
17. In Rameshchandra Nandlal Parikh Vs. State of Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.
20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. 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 underSection 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173Cr.P.C. 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 Cr.P.C.
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 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 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 counter claim, investigation on both the FIRs has to be conducted."
(Emphasis added)
22. In Amitbhai Anilchandra Shah (Supra), the Apex Court has clearly observed that there can be no second FIR, hence there can be no fresh investigation on receipt of every subsequent information in respect of same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences, therefore, second FIR can be held to be invalid and quashed, as per the scheme of Code of Criminal Procedure and fundamental rights of an accused provided under Articles 14, 20 and 21 of the Constitution of India.
23. In paragraph-37, 38 and 60 in the case of Amitbhai Anilchandra Shah (Supra), the the Apex Court has observed as follows:
"37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
"19. 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 under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 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.
20. 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.
27. 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 under Section 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 under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr. Rawal, learned ASG, by referring T.T. Anthony (supra) submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. Learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati - a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated, re-affirmed in the following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC 567.
In C. Muniappan (supra), this Court explained "consequence test", i.e., if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.
60. In view of the above discussion and conclusion, the second FIR dated 29.04.2011 being RC No. 3(S)/2011/Mumbai filed by the CBI is contrary to the directions issued in judgment and order dated 08.04.2011 by this Court in Writ Petition (Criminal) No. 115 of 2009 and accordingly the same is quashed. As a consequence, the charge sheet filed on 04.09.2012, in pursuance of the second FIR, be treated as a supplementary charge sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Criminal) No. 5 of 2013."
(Emphasis added)
24. The instant case is required to be examined in the light of the aforesaid settled legal propositions for which it is necessary for this Court to examine the facts and circumstances giving rise to first application under which F.I.R. has already been lodged and second application under Section 156(3) Cr.P.C. dated 20.08.2018 for lodging of the second F.I.R. and the test of sameness is to be applied to find out whether both the applications under Section 156(3) Cr.P.C. for lodging of first and second F.I.R. relates 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 affirmative, the second application under Section 156(3) Cr.P.C. for lodging the second first information report is liable to be quashed. However, in case, the contrary is proved, where the version in the second application under Section 156(3) Cr.P.C. for lodging the second first information report is different and they are in respect of the two different incidents/crimes, the second application under Section 156(3) Cr.P.C. is permissible. In case in respect of the same incident the accused in the first information report comes forward with a different version or counter claim, investigation on application under Section 156(3) Cr.P.C. has to be conducted.
25. If the first application under Section 156(3) Cr.P.C. in which the F.I.R. has already been lodged and the second application under Section 156(3) Cr.P.C. dated 20.08.2018 for lodging the second F.I.R. against the opposite party nos. 3 to 6 are read together, it becomes clear that the incident was of 10/11.01.2018. For the aforesaid incident, the first information report has already been lodged against the same accused.
26. After reading of the aforesaid facts and after applying the principle of sameness, this Court finds that second application under Section 156(3) Cr.P.C. for lodging the second F.I.R. relates to the same incident in respect of the same occurrence for the F.I.R. has already been lodged, therefore, the submissions made by the petitioner (in person) has substance. The second application under Section 156(3) Cr.P.C. for lodging of the second first information report was not maintainable and the court below has rightly rejected the same under the impugned order. The judgment relied upon by the petitioner, in person, in the case of Lalita Kumari (supra) has no application in the facts and circumstances of the case as the principle of sameness has not been dealt with in the aforesaid case. So far as the second judgment of the Apex Court in the case of T.T. Antony (supra) relied upon by the petitioner, in person, is concerned, this Court finds that the said judgment is against the petitioner's case. In T.T. Antony (supra) case the Apex Court has clearly held that for the same offence/incident/ cause of action the second F.I.R. could not be entertained.
27. In the light of the judgments of the Apex Court, referred to above, it is explicitly clear that the application under Section 156 (3) Cr.P.C. for lodging of the second first information report is cryptic and does not stand the test laid down by the Apex Court.
28. In view of the above, the impugned judgment and order dated 25.06.2019 is legal and the same do not suffer from any illegality, perversity or jurisdictional error which may call for any interference by this Court. Hence the prayer made in the present petition is refused.
29. The present petition lacks merit and is accordingly dismissed.
(Manju Rani Chauhan, J.) Order Date :- 5.12.2019 JK Yadav