Allahabad High Court
Mukeem Ullah Son Of Late Sri Naim Ullah, ... vs State Of Uttar Pradesh Through ... on 7 March, 2006
Equivalent citations: 2006CRILJ2606, 2006 CRI. L. J. 2606, 2006 (6) AKAR (NOC) 787 (ALL), 2006 (3) ALL LJ 607, 2006 (4) ABR (NOC) 740 (ALL), 2006 (6) AKAR (NOC) 803 (ALL), (2006) 2 ALLCRIR 1949, (2006) 55 ALLCRIC 435
Author: Shiv Shanker
Bench: Amitava Lala, Shiv Shanker
JUDGMENT Shiv Shanker, J.
1. These Criminal Misc. Writ Petitions under Article 226 of the Constitution of India have been filed by the petitioners Mukeem Ullah, Mabood Alam, Asgar Ali & Bahaluddin and Raju Kachhwah & Munna Kachhwah praying to quash the F.I.R. of Case Crime No. 118 A of 2005, under Sections 147, 148, 149, 336, 307 and 302 I.P.C., P.S. Mau Aima, District Allahabad and Case Crime No. C-35 of 2005, under Sections 147, 148, 149, 302, 308, 203 I.P.C. and under Section 3(2) V SC/ST Act, P.S. Malwan, District Fatehpur and stay the arrest of the petitioners.
2. Affidavit and supplementary affidavit on behalf of the petitioners and counter affidavit on behalf of the opposite parties have been filed in Criminal Misc. Writ Petition No. 9225 of 2005.
3. Brief facts of Criminal Misc. Writ Petition No. 9225 of 2005 are that one Ram Kumar s/o Baijnath Patel, resident of village Chhitemau, P.S. Mau Aima, District Allahabad submitted a written report at the concerned police station on 23.8.2005 at about 11.30 A.M. wherein it has been alleged that on 23.8.2005 Gram Panchayat Election was going on in which four candidates of his village were contesting the said election. At the time of casting votes at about 10 A.M., some altercation took place between both the parties and pieces of bricks and stones were being thrown from both sides, at the same time accused Mustkeem Ullaha, Raju, Bhullar Pasi, Naresh Chamar, Jagdish Chamar, Ram Adhar, Irshad, Salauddin, Kaiyum, Devprakash started abusing and throwing the pieces of bricks and stones, and anyone of them opened fires which hit upon the person of Shobhalal Patel, Kallu Patel, Shaymlal Patel, Lal Chandra Patel and Raju Patel. Therefore, the complainant lodged the F.I.R. on 23.8.2005 at about 11.30 A.M.. On 26.8.2005 at about 11.15 A.M. the second F.I.R. was lodged which has been registered as case Crime No. 118A of 2005 against Mustkeem Ullaha, Mukim Ullah, Mabood Alam, Asgar Ali and Bahaluddin regarding the same incident by Kamlesh Patel (injured witness) wherein it was alleged that the complainant along with his family members were going to election booth for casting their votes. The same time the accused persons Mustkeem, Mukim Ullah, Mabood Alam(Inspector), Asgar Ali and Bahaluddin met them and they have restrained them for casting the vote upon which some altercation took place between them. Thereafter, they were beaten by the accused persons with lathis, dandas and bricks and accused Mustkeem, Mukim Ullah, Mabood Alam(Inspector), Asgar Ali and Bahaluddin opened fires with their countrymade pistols with intent to kill the complainant and his companion. Consequently, the fires hit upon Shobha Lal Patel, Kallu Patel, Shaymlal Patel, Lal Chandra Patel and Raju Patel. The complainant had proceeded to the police station Mau Aima along with all the injured. After seeing serious condition of the injured they were sent to the hospital after giving majrubi chitthi where they were medically examined. During the course of treatment Shaymlal Patel(injured) has expired on 25.8.2005 due to sustaining injuries. Inquest report and other papers were prepared by the Investigating Officers regarding death of the deceased and same was sent for post mortem in sealed bundle where the post mortem was conducted by the Doctor.
4. It was further alleged that one Ram Kumar companion of Mustkeem Ulla accused, has lodged the F.I.R. wrongly. This incident was witnessed by Brijlal son of Magahi Patel, Vishwanath, Mahes and Bachu Lal.
5. Affidavit, counter affidavit and supplementary affidavit have been exchanged between the parties.
6. Since in both the above writ petitions common question of law is involved and as such the same are being decided by this common judgment.
7. Heard Sri Daya Shanker Misra, Sri Chandrakesh Misra, Sri Chandan Sharma, learned Counsels for the petitioners and Sri A.K. Shukla, Sri D.K. Srivastava, Sri V.P. Srivastava, learned Counsel for the respondents and Sri Syed AH Murtaza, learned A.G.A.
8. It is contended on behalf of the petitioners that F.I.R. for the alleged occurrence had already been lodged on the same day by the complainant Ram Kumar son of Baij Nath Patel, which is Case Crime No. 118 of 2005 against the ten accused persons. However, Kamlesh Patel lodged the second F.I.R. against five accused persons with delay on 26.4.2005 which is case crime No. 118 A of 2005 regarding the same occurrence. Therefore, the second F.I.R. will hit by the provision of Section 162 Cr.P.C.. It is further contended that all the injured persons went to the concerned police station on the same day from where they were referred to the hospital for their treatment. Therefore, it is liable to be deemed that there was no dispute at that time regarding not lodging first F.I.R. which was lodged promptly after alleged occurrence on the same day and it is also against the provision of Sections 154, 157 Cr.P.C. and Article 20 of the Constitution of India. It is further contended that there is pronouncement of Hon. Supreme Court in the case of T.T. Antony v. State of Kerala and Ors. 2001 6 Supreme Court Cases 181, wherein it has been observed that second F.I.R. would not be lodged. It is further contended that investigation has already started upon the first F.I.R.. Investigation is done against the crime not against any special accused or any section. Therefore, no action can be taken on the second F.I.R. and the accused persons nominated in the second F.I.R., cannot be arrested and no process under Section 82 and 83 of the Cr.P.C. can be issued on the basis of the second F.I.R.. In these circumstances, the second F.I.R is against the law, invalid and unconstitutional. Therefore, it is liable to be quashed.
9. On the other hand, learned A.G.A. and others have contended that second F.I.R. is not against the law and unconstitutional. Second F.I.R. can be lodged by another person against other accused also in case of different version. In the present case first F.I.R was lodged by one companion of the accused party wherein the supporter of second party have been nominated falsely. Second F.I.R. has been lodged on the basis of the real facts against the real accused persons. Therefore, this petition is liable to be dismissed.
10. The chargesheet against the accused/petitioners Mustkeem Ullah and Asgar Ali, according to the second F.I.R., has been submitted in the court and cognizance has been taken by the concerned court which is not disputed. Therefore, the petition regarding both the accused persons has become infructuous. So far as the matter of other petitioners is concerned, it has come during the course of argument from the side of opposite party that statements of injured witnesses were not recorded by I.O. after registering the first F.I.R.. Same were recorded according to second F.I.R. The presence of injured witnesses cannot be doubted at the place of occurrence and there is guarantee of their presence at the time of occurrence. The investigation was going on upon both the F.I.R. and first F.I.R. lodged by first complainant was found false and case under the appropriate section has also been registered against the complainant of first F.I.R. as argued on behalf of the opposite parties. It has been specifically mentioned in the second F.I.R. that the false report as first F.I.R. was already lodged by one of the associates of accused Mustkeem Ullaha wherein it was not disclosed who has fired from the side of accused Mustakeem Ullah, the only fact mentioned that somebody has opened fires from the side of him due to which Shobha Lal Patel, Shayam Lal Patel, Lal Chandra Patel Kallu Patel, and Raju Patel received injuries.
11. The second F.I.R. has not been lodged by the same person (Kamlesh Patel) of the first F.I.R.. It has been specifically mentioned in the second F.I.R. that accused/petitioners Mustkeem Ullah, Mukeem Ullah, Mabood Alam opened fire from their Tamanchas with intent to kill, by which Shobha Lal Patel, Kallu Patel, Shayam Lal Patel, Lal Chandra Patel Raju Patel sustained injuries. Later on Shayam Lal Patel (injured) had expired An the hospital on 25.8.2005. Therefore, it appears that there is rival or different version in the second F.I.R.. First F.I.R. was found false during the course of investigation and all the eye witnesses including complainant and injured witnesses have supported the version of the second F.I.R.. The second F.I.R. has not been lodged by the same complainant and all the nine accused except Mustkeem Ullah have been relieved in the second F.I.R. and four other names have been mentioned in the second F.I.R.. During the course of investigation names of nine accused persons mentioned in the first F.I.R. were found false. Consequently, the legal action has been taken against the complainant of first F.I.R. Due to different versions in the second F.I.R, it is not liable to be deemed that the second F.I.R. will be hit under Section 162 Cr.P.C.
12. Second F.I.R. in the present case was lodged by the different person against four new accused persons by giving rival or different version. The version of the second F.I.R. is supported with the statement of the prosecution witnesses including injured witnesses and chargesheet on the basis of second F.I.R. has been submitted against the above petitioners namely Mustkeem Ullah and Asgar Ali and legal action has been taken against the complainant of first F.I.R. being found false report. In these circumstances, the second F.I.R. cannot be quashed by invoking Section 162 Cr.P.C.. Therefore, I do not find any force in the arguments of learned Counsel for the petitioners.
13. It has been observed in Upkar Singh v. Ved Prakash and Ors. delivered by three judges of the Hon. Supreme Court that If concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. If the law laid down by the Supreme Court in 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 the, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given here in 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. The Supreme Court in 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.
Ram Lal Narang and Ors. v. State followed.
In the instant case, in regard to the incident which took place on 20.5.1995 the appellant and first respondent have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned police, the complaint of the appellant was not so registered, hence on his prayer the Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. It cannot be said that same is hit by Sections 161 or 162 of Cr.P.C. which has absolutely no bearing on the question involved Section 161 or 162 Cr.P.C. does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of investigation and its evidentiary value.
14. In the pronouncement of Apex Court, the case of T.T. Antony v. State of Kerala was considered. In these circumstances, petitioners cannot get benefit from the pronouncement of T.T. Antony v. State of Kerala.
15. In the above pronouncement of Apex Court, the case of Kari Chaudhary v. Mst. Sita Devi has also been followed wherein it has been laid down that Till police completes investigation pursuant to an F.I.R. and finally lays the chargesheet against the accused persons, if during the course of investigation it finds the F.I.R. to be false, it can continue with the investigation and reach its final conclusion as regards to the real culprits.
16. It is further held that two F.I.Rs. in respect of same case -" When can investigation be against both.
Of course the legal position is that there cannot be two F.I.Rs. 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 to the court by way of the subsequent FIR need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in the first F.I.R. are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in the first FIR 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. 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.
17. It has also been observed in Adarsh Kumar Tripathi v. State of U.P. and Ors. 2005 CRI. L.J. 4204 (Division Bench of this Court) that Criminal P.C.(2 of 1974), Sections 154, 162-second FIR-Bar against-Applicability-Earlier investigation was directed by Chief Judicial Magistrate under Section 156(3)-But that order was quashed by Sessions Judge-No investigation thereby commenced-Subsequent F.I.R. lodged on basis of information received about cognizable offence-There is no question of any bar under Section 162-Moreso, when FIR disclosed prima facie case for commencing investigation.
18. It has also been observed in Anurag Tripathi v. State of U.P. and Anr. 2005 Criminal Law Journal 3474 delivered by Hon. Judge of this Court Criminal P.C.(2 of 1974) Sections 154, 156(3)-Filing second F.I.R. in respect of same accused-Permissibility-Petitioner who was an accused in some other case was attacked by unknown person while he was being carried away in police van-Police lodged FIR against unknown persons-Petitioner was also injured in said incident-Application of petitioner for registration of case under Section 156(3) against persons named therein-Maintainable-Merely because police lodged FIR against some unknown person-It cannot be said that subsequent application moved by petitioner under Section 156(3) naming accused person is not maintainable-Order rejecting petitioner's application-Liable to be set aside.
19. The above pronouncements are applicable in these writ petitions.
20. It has been provided under Article 20(2) of the Constitution of India, 1950 that "(2) No person shall be prosecuted and punished for the same offence more than once.
21. Therefore, 'prosecuted' and 'punished' must be read in conjunctive sense. Both the words 'prosecuted' and 'punished' cannot be read separately and must be read as a whole.
22. It has been observed in , Thomas Dana v. State of Punjab that-:
"Prosecution " means a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial.
23. It has also been held in A.I.R. 1554 SC 375, S.A. Venkataraman v. Union of India and Anr. that-:
The language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceeding in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence.
24. It has been further observed that-:
Article 20(2) of the Constitution of India does not contain the principle of "autrefois acquit". In order to enable a citizen to invoke the prosecution of Clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted 'or' punished. Both the factors must co-exist in order that the operation of the clause may be attracted.
25. It has been observed in , Maqbool Hussain v. State of Bombay that:
Article 20(2) incorporates within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribes it by providing ' that there should be not only, a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
26. In the present case the petitioners have not been prosecuted and punished in case crime No. 118 of 2005 whereby the first F.I.R. was lodged. Presently, the investigation is pending against the petitioners on the basis of the second F.I.R. which is case crime No. 118-A of 2005. No chargesheet has yet been filed by the I.O. regarding the second F.I.R. against the petitioners. In these circumstances, no question arises regarding the double jeopardy. Now the Investigating Officer has to file the police report under Section 173(2) Cr.P.C. against the rest petitioners after completion of the investigation. Therefore, the proceeding is also not pending before the court prior to file the police report under Section 173(2) of Cr.P.C. The above pronouncements are not applicable in these petitions regarding the contentions of double jeopardy. So far as the contentions regarding Section 157 Cr.P.C. is concerned. Police has unfettered power to investigate cognizance offence even only on the ground of suspicions, if he comes to the conclusion that full facts were not given in earlier F.I.R.
27. Similarly, first F.I.R. was lodged by Abhimanue Singh son of Pratap Singh in connection with Writ Petition No. 36318 of 2006 against several unknown persons in case crime No. 156 of 2005, under Sections 304, 308 I.P.C. on 22.6.2006 of incident has allegedly occurred on 21/22.6.2005 at 12.00 mid-night.
28. Thereafter, the second F.I.R. was also lodged by Smt. Budhiya wife of Bhikhu Pasi on 29.7.2005 regarding the same occurrence wherein the names of accused persons have been disclosed Abhimanue Singh i.e. complainant of first F.I.R., Ajai Singh, Munna Kachhwah, Raju Kachhwah, Kallu Kachhwah, Munan, Hari Lal Pasi and ten others unknown persons. Therefore, the second F.I.R. has not been lodged regarding the alleged occurrence by the same complainant and against the same accused persons. In these circumstances, the principles laid down in Upkar Singh v. Ved Prakash and Ors.(Supra) and other decisions as cited above, are applicable. Therefore, the second F.I.R. is not hit by the provision of Section 162 Cr.P.C.. In these circumstances, the second F.I.R. of this case is not liable to be quashed.
Sd/(Justice Shiv Shanker) Amitava Lala, J. ( In concurrence) - I agree and endorse the view point as taken by the Hon'ble Shiv Shanker, J.. I want to add few lines for greater and better impact. Police administration is a part of the system. Infraction, if any, is an exception but not the rule. We have to follow the system. If we follow the system, we have to believe in the power of investigation of the police. The police can investigage the matter even in furtherance in view of the Section 173(8) Code of Criminal Procedure. Stage of investigation and stage of prosecution and punishment are distinct and different. Stage of investigation is a pre-cognizance stage, wherein stage of prosecution and punishment is post-cognizance stage. At the time of investigation police has to proceed on the basis of better materials. If better materials are available in subsequent first information report and if the same is not ditto of first First Information Report, there is no bar on the police authorities about investigation on the basis of the second first information report. The appropriate understanding is that investigation will be proceeded on the basis of one first information report. It may be first, it may be second depending upon the materials available for the purpose of such investigation. Such technical objection is not prudent for the purpose of investigation. If it is accepted then the scope and ambit of Section 173(8) Cr.P.C. will be nugatory. So far as the question of double jeopardy is concerned, particularly in view of the Article 20(2) of the Constitution of India, the same can be available if prosecution and punishment are made for the same offence under the same Act. But not in the cases of departure. In any event, we do sometimes read "or" for "and" and "and" for "or" in a statute. But we do not do it unless we are obliged to do so, because, ordinarily "or" does not mean "and" and vice versa. Such reading of one for the other is permissible only when clear import of the language requires it. Here, the import of Article 20(2) of the Constitution as regards prosecution and punishment is so explicit that there no question can arise about disjunctivity.
Sd/(Justice Amitava Lala)
29. Thus, both the writ petitions are hereby dismissed.
30. Interim order/s stands vacated.
31. However, no order is passed as to costs.