Allahabad High Court
Kushal Mishra @ Ishu Mishra And 2 Others vs State Of U.P. And Another on 7 November, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:213159 Court No. - 92 Case :- APPLICATION U/S 482 No. - 35502 of 2023 Applicant :- Kushal Mishra @ Ishu Mishra And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pooja Srivastava,Anil Babu,Sr. Advocate Counsel for Opposite Party :- G.A.,Saurabh Pathak Hon'ble Anish Kumar Gupta,J.
1. Heard Sri V.P. Srivastava, the learned Senior Counsel assisted by Sri Anil Babu and Ms. Pooja Srivastava, learned counsels for the applicants, Sri Saurabh Pathak, learned counsel for opposite party no.2 and Sri Kamlesh Kumar Tripathi, the learned AGA appearing for the State.
2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 20.05.2023 as well as cognizance/summoning order dated 08.08.2023 passed by the Special Judge, POCSO Act, Auraiya and the entire proceedings of S.S.T. No. 1010 of 2023 (State vs. Kushal Mishra @ Ishu Mishra and others) arising out of Case Crime No. 68 of 2022, under Sections 376, 504, 506 IPC, Sections 5/6 POCSO Act and 3/4 Dowry Prohibition Act, P.S. Debiapur, District Auraiya, pending before the Special Judge, POCSO Act, Auraiya.
3. The learned Senior Counsel appearing for the applicants submits that the instant FIR is a continuation of series of offences for which the earlier FIR being Case Crime No. 248 of 2019 under Sections 376, 504, 506 IPC and POCSO Act was registered by the opposite party no.2 against the applicants herein. During the investigation of the said earlier FIR, the opposite party no.2 has given her statement under Section 164 Cr.P.C. wherein she has categorically denied the incident of any rape committed by the applicant. Therefore, in the said case, final report was submitted and the protest petition filed by the opposite party no.2, was pending before the learned Magistrate for further investigation. The learned Senior Counsel further submits that the second FIR being consequential in nature, which relates to the same series of offences as alleged in the earlier FIR being Case Crime No. 248 of 2019, therefore, subsequent FIR is not maintainable and is liable to be quashed.
4. In support of his arguments, the learned Senior Counsel has relied upon the judgments of the Apex Court in T.T. Antony vs. State of Kerala and others, 2001 SCC (Cri) 1048, Babubhai vs. State of Gujarat and others, (2010) 12 SCC 254 and Amitbhai Anil Chandra Shah vs. Central Bureau of Investigation and another, (2013) 6 SCC 348.
5. Per contra, learned counsel for the opposite party no.2 submits that after the first FIR was registered against the applicant no.1 herein, he had win over the opposite party no.2 by making a compromise that he is ready to marry the opposite party no.2 and in fact thereby the applicant herein had given a statement under Section 164 Cr.P.C. denying the incident of rape etc. and subsequent thereto on 29.05.2020, the applicants have conducted the ceremony of engagement with the opposite party no.2 to give effect of the said compromise under which the opposite party no.2 has denied the incident in her 164 Cr.P.C. statement. After the engagement, again the applicants indulged in the similar kind of offence under the garb of promise to marry with the opposite party no.2 and subsequently, the applicants have denied to marry opposite party no.2. Therefore, the second FIR has been lodged by the opposite party no.2 stating the separate offence dated 20.05.2022 wherein the applicants have attempted to murder the opposite party no.2 and has demanded Rs.10 lacs as dowry for solemnizing the marriage. Therefore, learned counsel for opposite party no.2 submits that the offences in the second FIR are entirely separate from the allegations made in the earlier FIR, which were withdrawn in view of the compromise, which was resulted in the engagement of the opposite party no.2 with the applicant no.1. Therefore, the second FIR alleges entirely a separate set of offences and the same cannot be quashed summarily while exercising the jurisdiction under Section 482 Cr.P.C. In support of the same, learned counsel for opposite party no.2 has relied upon the judgments of Hon'ble Apex Court in the case of State of Jharkhand vs. Lalu Prasad Yadav, (2017) 8 SCC 1.
6. Learned counsel for the State also submits that since the allegations in both the FIRs are separate from each other and the second FIR alleges the separate set of offences, which have been committed by the applicants subsequent to the final report filed in the earlier FIR, therefore, the second FIR cannot be quashed.
7. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. The undisputed facts of the case are that the opposite party no.2 has lodged a first information report being Case Crime No. 248 of 2019 on 21.05.2019 alleging that the applicant no.1 herein used to have a physical relationship with the opposite party no.2 under the pretext of marriage. When the said relationship came into the knowledge of the parents of opposite party no.2, they complained to the parents of the applicant no.1 and the applicants threatened the parents of opposite party no.2 as well as opposite party no.2 that as if any police complaint is made by them, they will be eliminated by the applicants herein and when the parents of the opposite party no.2 complained to the applicants about the same, the applicants herein agreed to solemnize the marriage of the applicant no.1 with the opposite party no.2 within a period of three months. When the period of three months expired and again the parents of opposite party no.2 asked the applicants herein to marry the applicant no.1 with opposite party no.2, they threatened the opposite party no.2 and her parents that if any complaint is made, they will be eliminated. The said complaint was duly investigated by the police. In the meantime, the applicants herein win over the opposite party no.2 and her parents by making a false promise to marry and under such promise of marriage, the opposite party no.2 has changed her statement under Section 164 Cr.P.C. to save her relationship and marriage with the applicant no.1. Due to such statement under Section 164 Cr.P.C., the police submitted the final report in the said case crime number and subsequent thereto the statement recorded under Section 164 Cr.P.C., the applicants herein solemnized the engagement ceremony of the applicant no.1 with the opposite party no.2. After the said engagement, the applicant no.1 again forcibly continued to have the physical relationship with the opposite party no.2 and when the final report was submitted exonerating the applicants, the applicants refused to marry the opposite party no.2 despite the engagement ceremony by them.
8. Thereafter the said final report was protested by the opposite party no.2 and vide order dated 28.11.2022, the learned Special Judge, POCSO Act directed for further investigation in the matter. Subsequently, again the police filed the final report and on protest being filed by the opposite party no.2, the Court has rejected the same and directed the said case to be treated as a private complaint by the opposite party no. 2. Subsequently the opposite party no.2 has lodged the instant FIR being Case Crime No. 68 of 2022 against the applicants stating the entire facts and circumstances of the case, which led to filing of the first previous FIR being Case Crime No. 248 of 2019 under Sections 376, 504, 506 IPC and POCSO Act and also stating the subsequent events of 25th January 2022 when the applicants called the opposite party no.2 and her parents. When they reached there, the applicants refused to marry the opposite party no.2 and demanded the dowry of Rs. 10 lacs for the marriage. When the parents of opposite party no.2 shown inability to give Rs. 10 lacs as dowry, then the applicants abused and threatened the parents of the opposite party no.2,.
9. Learned Senior Counsel for the applicants relying upon the judgments of the Apex Court in T.T. Antony vs. State of Kerala (supra), Babubhai vs. State of Gujarat (supra) and Amitbhai Anil Chandra Shah vs. Central Bureau of Investigation (supra) has submitted that the second FIR is nothing but the continuation of the offence as alleged in the first FIR. Therefore, the FIR is not maintainable in law in view of the judgments of the Apex Court. In T.T. Antony (supra), the Apex court has held as under:
"19. The scheme of the Section 173 Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 173 Cr.P.C. or 157 of Cr.P.C. 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 evidence collected he has to form opinion under Section 173 Cr.P.C. or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173 Cr.P.C. of Cr.P.C. 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 Cr.P.C."
"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 F.I.R. 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 F.I.R. 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."
"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 Cr.P.C. 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 Narangs' case (supra) 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. 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 underway 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 Cr.P.C. or under Article 226/227 of the Constitution."
10. In Upkar Singh vs. Ved Prakash and others, (2004) 13 SCC 292, the Apex Court has further explained the judgment in T.T. Anotny relying upon the judgment of Ram Lal Narang vs. State (Delhi Admn.), ((1979) 2 SCC 322 in following terms:
22. A perusal of the judgment of this Court in Ram Lal Narang's case (supra) not only 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 1st 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's 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's case is in the same line as found in the judgments in Kari Choudhary and State of Bihar vs. J.A.C. Saldanna (supra). However, it must be noticed that in T.T. Antony's case Ram Lal Narang's case was noticed but the Court did not express any opinion either way.
23. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding 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 herein below 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 books. This cannot be the purport of the Code.
24. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible."
11. In Ramesh Chandra Parikh vs. State of Gujarat, (2006) 1 SCC 732, the Apex Court has reconsidered the judgment in 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 offence, and have not been alleged to have been committed in the course of the same transaction or the same occurrence as the ones alleged in the first FIR, there is no prohibition in accepting second FIR.
12. In Nirmal Singh Kahlon vs. Stae of Punjab and others, 2009 (1) SCC 441, the Apex Court has held as follows :-
"67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."
13. In Babubhai vs. State of Gujarat (supra), there were two FIR registered with regard to the incident, which took place on the same date, in those circumstances, the Apex Court has upheld the judgment of the High Court, which quashed the subsequent FIR lodged with regard to the offence of the same date.
14. An Amitbhai Anil Chandra Shah (supra), the Apex Court has quashed the second FIR with regard to the murder of the witness of the first encounter of Sohrabuddin, which was committed after a gap of one year. The Apex Court has concluded as under :
"59. In the light of the specific stand taken by the CBI before this Court in the earlier proceedings by way of assertion in the form of counter affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted the CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed the CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment."
15. Learned counsel for the opposite party no.2 has relied upon the judgment of the Apex Court in P. Rajagopal and others etc. vs. the State of Tamilnadu, (2019) 5 SCC 403 wherein it has been observed that undoubtedly factors such as proximity of time or place, unity of purpose and design and continuity of action in respect of a series of facts, have to be considered in order to have determined whether such acts form part of the same transaction or not. It has been further observed 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 also violates according to the circumstances. In P. Rajagopal (supra), the Apex Court has concluded as under:
"21. Furthermore, it is no doubt true that the first information relating to the crime of abduction dated 12.10.2001 was marked in the case on hand relating to murder. However, we cannot accept the contention that the same has been used as a substantive piece of evidence in this matter. This is because the said document was practically used only as supportive material to show the motive for the accused to commit the crime."
16. In State of Jharkhand vs. Lalu Prasad Yadav (supra), the Apex Court observed as under :
"39.The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law. The concept is of 'same offence' under Article 20(2) and section 300 Cr.PC. In case distinct offences are being committed there has to be independent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in section 219. One general conspiracy from 1988 to 1996 has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of the offence. Whatever could be combined has already been done. Thus we find no merit in the submissions made by learned senior counsel appearing on behalf of accused persons."
17. From the above decisions, it is crystal clear that the Court has to consider whether the allegations in the second FIR are the same or similar in nature. If the allegations are same and/or are the continuation of the same offence, the second FIR is not permissible, however, when the second FIR alleges, the offences of similar nature but are committed at different point of time or when in the second FIR, the separate offences are alleged, then the second FIR is maintainable and cannot be quashed.
18. In the instant case, the first FIR was lodged in the year 2019 by the opposite party no.2 alleging that the offence of rape under the pretext of marriage. To obtain favourable statement of the opposite party no.2, the applicant herein had solemnized the engagement ceremony with no intention to marry the applicant no.1 with the opposite party no.2 and subsequently there to the applicant no.1 continued to have physical relationship subsequent to the engagement ceremony. When the applicants were determined not to marry the opposite party no.2 and the said engagement ceremony was conducted only for the purpose of cheating and defrauding the opposite party no.2. Subsequently, the applicants have demanded a dowry to marry the opposite party no.2, which was denied by the parents of the opposite party no.2, therefore, in the subsequent FIR lodged by the opposite party no.2, there are allegations of rape subsequent to the engagement ceremony and demand of dowry, which are separate offences committed by the applicant no.1 and the demand of dowry has been made by the applicants as per the allegations in the subsequent FIR, which is entirely a different offence, which was not existent at the time of lodging of the previous FIR.
19. In considered opinion of this Court, though in the subsequent FIR, the allegations were similar in nature with regard to the rape and the offences under the POCSO Act and are successive in nature in addition thereto the allegations of dowry demand were also made. Both these offences are distinguished from the offences alleged in the first FIR. Therefore, in the considered opinion of this Court, the subsequent FIR is maintainable in view of the aforesaid judgments of the Apex Court and there is no bar of continuation of the second prosecution, which was with respect to the subsequent events.
20. In view thereof, the instant application is devoid of merits and is hereby dismissed.
Order Date :- 07.11.2023 Ashish Pd.