Madhya Pradesh High Court
Rajendrakumar Batham vs The State Of Madhya Pradesh on 7 July, 2023
Author: Avanindra Kumar Singh
Bench: Sheel Nagu, Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 7th OF JULY, 2023
MISC. CRIMINAL CASE No. 10203 of 2023
BETWEEN:-
RAJENDRAKUMAR BATHAM S/O LATE
SHRI RAM GOPAL BATHAM, AGED
ABOUT 60 YEARS, OCCUPATION:
SARKARI SEVA NIVRIT RESIDENT 341,
PANCHVATI COLONY, A.B. ROAD
INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ALOK VAGRECHA & SHRI S.D.MISHRA- ADVOCATES)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION E.O.W.
DISTRICT BHOPAL (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MADHUR SHUKLA- ADVOCATE )
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Reserved on : 27.06.2023
Pronounced on : 07.07.2023
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2
This petition having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE AVANINDRA KUMAR
SINGH passed the following:
ORDER
Though this matter is listed today for orders on admission, however, with the consent of learned counsel for the parties it is heard finally.
2. Petitioner-Rajendra Kumar Batham, a Retired Judicial Officer, has filed this petition under Section 482 of the Code of Criminal Procedure (for brevity "Cr.P.C.") for quashing of F.I.R. No.89/2021 dated 29.12.2021 registered at Police Station, Economic Offences Wing, Bhopal for offences under sections 420, 467, 468, 471, 406, 409 & 120-B of the Indian Penal Code (hereinafter referred to as the "IPC") and sections 7, 13(1)(a) & 13(2) of the Prevention of Corruption Act,1988.
3. As per prosecution case, the petitioner was a member of Madhya Pradesh Judiciary and was posted in different Districts.
Between period 01.04.2012 to 30.03.2013, he was posted in Dewas on deputation in the Labour Court and thereafter he was 3 relieved from the post and was posted at CJM Rajgarh Biaora.
He stood retired from the service on 24.04.2014.
4. In the year 2017, the petitioner was informed by the Labour Court Dewas in 2014-15 that by playing fraud a bank account was opened, in which, Government money has been misappropriated. On this information the petitioner informed the Bank, Treasury and Police by letters Annxures P/2 to P/4 respectively. On 08.07.2017 the petitioner by Annexure-P/04 informed the Police Station Dewas that in his name on the basis forged document an account has been opened, thereby causing loss to public exchequer, and further revealed that unknown person on the basis of photocopy of the documents of the complainant and photocopy of Identity Card Account opened on 22.04.2015, withdrew Government money.
5. On the basis of report police lodged an FIR No. 435/2017 against Narshing Baghel and Rajendra Bahadur Tamrakar for offences under Sections 409, 419, 420, 468, 467, 471 and 120-B of IPC and after investigation filed charge-sheet, in which, trial is underway. It is alleged that after four years of lodging 4 Annexure P/4 the economic Offence (EOW) Bhopal without any basis lodged FIR against the petitioner. Besides this, the Labour Court Dewas has also sent an intimation to the petitioner to deposit Rs. 1,91,62,942/- which are alleged to be embezzled during petitioner's tenure, in that matter petitioner has filed a separate Writ Petition No. 7317/2022, which is now pending in the High Court at Jabalpur ( as per CMIS report).
6. The second FIR has been lodged without any basis. It is also submitted that successor of the petitioner in Dewas Labour Court Shri Sachin Vijaywargiya by letter dated 20.09.2014, Letter No. 686 had requested the DDO login password in the name of Rajendra Bahadur Tamrakar for which the petitioner is not responsible. The petitioner was informed of the embezzlement on 07.07.2017 by the then Labour Judge, Dewas Shri Atmaram Ji Kheria that unknown person by opening an account in the Bank of India, Industrial Branch, Dewas, in the petitioner's name and has made transaction between 22.04.2015 to 30.06.2017 and on the said information the petitioner has lodged a complaint (Annexure P/4). The charge-sheet on the basis of Annexure-P/4 is Annexure-P/6. It is submitted that after 5 his retirement the petitioner never visited Dewas, therefore, there is no question of his opening bank account in Dewas. On the basis of report lodged by the petitioner, Sessions Trial No.374/2018 [State Vs.Rajendra Bahadur Tamrakar] is pending in the Court, in which, the petitioner has made deposition on 06.1.2023 as is evident from Annexure-P/7.
7. Regarding withdrawal/embezzlement of government money Ms.Veena Jain, Joint Director (Treasury & Accounts), Indore and Shri J.K.Sharma, Additional Director, (Treasury & Accounts), Bhopal have given separate enquiry reports, wherein the petitioner was not found responsible. It is submitted that when on the same set of facts earlier case has already been registered, then on the same basis second F.I.R. cannot be lodged. The Economic Offence Wing, Bhopal has failed to investigate that documents produced for opening of account and signature were forged so also the nomination in the account, name of Sushma as wife of account holder is mentioned, whereas Sushma is not the wife of petitioner. Similarly, wrong phone number has been mentioned. The pass-book, ATM and cheque book have not been seized to enquire as to who is operating the account. The CCTV 6 Footages have not been confiscated and, therefore, prayer has been made to quash the FIR No.89/2021 registered at Police Station, EOW, Bhopal for offences under sections 420, 467, 468, 471, 406, 409 & 120-B of IPC and 7, 13(1)(a) & 13(2) of Prevention of Corruption Act.
8. On the other hand the counsel for the respondent-EOW has stated that the matter is under investigation. There are strong leads in suspicion against the present petitioner. Hence, prayed for dismissed of instant petition.
9. We have heard the rival parties and perused the record including FIR No.89/2021.
The question before this Court is whether second FIR can be quashed on the basis of submissions made by the petitioner.
10. As per case diary of Crime No.89/2021 it is evident that FIR has been lodged against Bherusingh Chouhan, Narsingh Baghel (daily waged peon), Rajendra Bahadur Tamrakar (Assistant Grade-II) and all staff of Labour Court, Dewas, Rajendra Kumar Batham, the then Presiding Officer, Labour Court, Dewas (since Retired), Jai Ram Dabar, Peon, Industrial 7 Court, Indore, Sachin Kumar Vijayvargiya, the then Presiding Officer, Labour Court, Dewas (now Retired), Noor Singh and other persons.
11. Learned counsel for the petitioner has placed reliance on the decision in the cases of T.T.Antony Vs. State of Kerala and others, (2001) 6 SCC 181 and Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and another, (2013) 6 SCC 348=AIR 2013 SC 3794. The Supreme Court in paragraphs 20 & 27 of T.T.Antony (supra) has held as under:-
"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 8 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 [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] 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."9
12. In the case of Amitbhai Anilchandra Shah (supra) in paragraphs 45, 46, 48, 52 & 53 the Supreme Court observed thus:-
"45 .Ram Lal Narang [Ram Lal Narang v. State (Delhi Admn.), (1979) 2 SCC 322 :
1979 SCC (Cri) 479] was cited to be an authority carving out an exception to the general rule that there cannot be a second FIR in respect of the same offence. This Court, in the said decision, held that a second FIR would lie in an event when pursuant to the investigation in the first FIR, a larger conspiracy is disclosed, which was not part of the first FIR. In the case on hand, while entrusting the investigation of the case relating to the killing of Sohrabuddin and Kausarbi to CBI, this Court, by order dated 12-1-2010 [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] , expressed a suspicion that Tulsiram Prajapati could have been killed because he was an eyewitness to the killings of Sohrabuddin and Kausarbi.
46. CBI also filed an FIR on 1-2-2010 based upon the aforesaid judgment dated 12-1-2010 [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] and conducted the investigation reaching to a conclusion that conspiracy to kill Sohrabuddin and Kausarbi and conspiracy to kill Tulsiram Prajapati were part of the same transaction inasmuch as both these conspiracies were entered into from the very outset in November 2005. Based upon its investigation, CBI filed a status report(s) before this Court and an affidavit in Writ Petition (Crl.) No. 115 of 2007 bringing to the notice of this Court that killing of 10 Tulsiram Prajapati was also a part of the same transaction and the very same conspiracy in which killings of Sohrabuddin and Kausarbi took place and unless CBI is entrusted with the investigation of Tulsiram case, it will not be able to unearth the larger conspiracy covered in the first FIR.
The fact that even as per CBI, the scope of conspiracy included alleged killing of Sohrabuddin and Kausarbi and alleged offence of killing of Tulsiram Prajapati and the same is unequivocally established by the order passed by this Court on 12-8- 2010 in Rubabbuddin Sheikh v. State of Gujarat [Rubabbuddin Sheikh v. State of Gujarat, WP (Crl.) No. 6 of 2007, order dated 12-8-2010 (SC). For the text of the order see para 27 below.] which is fortified by the status report dated 11-11-2011 filed by CBI has already been extracted in paragraphs supra.
48. Upkar Singh [(2004) 13 SCC 292 :
2005 SCC (Cri) 211] also carves out a second exception to the rule prohibiting lodging of second FIR for the same offence or different offences committed in the course of the transaction disclosed in the first FIR. The only exception to the law declared in T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , which is carved out in Upkar Singh [(2004) 13 SCC 292 :
2005 SCC (Cri) 211] is to the effect that when the second FIR consists of alleged offences which are in the nature of the cross-case/cross-complaint or a counter- complaint, such cross-complaint would not (sic) be permitted as second FIR. In the case on hand, it is not the case of CBI that the FIR in Tulsiram Prajapati's case is a cross-FIR or a counter-complaint to the 11 FIR filed in Sohrabuddin and Kausarbi's case being FIR dated 1-2-2010.
52. This Court accepting the plea of CBI in Narmada Bai [(2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed CBI to "take over" the investigation and did not grant the relief prayed for i.e. registration of a fresh FIR. Accordingly, filing of a fresh FIR by CBI is contrary to various decisions of this Court.
a). The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.
b) The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.
12c) Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, 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. 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.
d) Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the 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. Sub- section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or 13 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, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
e) The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.
f) In the case on hand, as explained in the earlier paragraphs, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25-11-
2005/26-11-2005. We have already concluded that this Court having reposed faith in CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed CBI to "take up" the investigation.
g) For vivid understanding, let us consider a situation in which Mr A having killed B with the aid of C, informs the police that unknown persons killed B. During investigation, it revealed that A was the real culprit and D abetted A to commit the murder. As a result, the police officer files the charge-sheet under Section 173(2) of the Code with the Magistrate. Although, in due 14 course, it was discovered through further investigation that the person who abetted Mr A was C and not D as mentioned in the charge-sheet filed under Section 173 of the Code. In such a scenario, uncovering of the later fact that C is the real abettor will not demand a second FIR rather a supplementary charge-sheet under Section 173(8) of the Code will serve the purpose.
h) Likewise, in the case on hand, initially CBI took a stand that the third person accompanying Sohrabuddin and Kausarbi was Kalimuddin. However, with the aid of further investigation, it unveiled that the third person was Tulsiram Prajapati. Therefore, only as a result of further investigation, CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted : instead filing of a supplementary charge-sheet in this regard will suffice the issue.
i) Administering criminal justice is a two- end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly, 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 15 offences. As a consequence, in our view this is a fit case for quashing the second FIR to meet the ends of justice.
j) The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same.
53. In the light of the specific stand taken by 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 Articles 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 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 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."
13. The Inquiry Reports submitted by Team of Ms.Veena Jain, Joint Director (Treasury & Accounts), Indore as also Shri J.K.Sharma, Additional Director in the matter are on record.
Page 57 of the first report is important, in which, Treasury 16 Officer as well as Staff has been found liable. As regards report of Shri J.K.Sharma is concerned, in paragraphs 66 & 67 the Officers/employees alongwith Staff of Treasury have been found liable. The details have also been given as to the amount credited into 08 accounts.
14. In the charge-sheet filed on the basis of Crime No.435/2017 the Police Station, Industrial Area, Dewas it has been mentioned that partial charge-sheet being filed against the accused persons, namely, Rajendra Bahadur Tamrarkar, which is not complete.
However, regarding other accused persons the investigation continued. It is clearly mentioned that the investigation is incomplete. It is also mentioned that the ATM Card, cheque book is dispatched by post on the address of the account holder. In the circumstances, it is alleged that why the Presiding Officer did not take any action, if the previous Presiding Officer was not at the given address. It is also mentioned that the charge-sheet is being produced because if it is not filed, then Rajendra Bahadur would get benefit of section 167(2) Cr.P.C. It is also evident from the copy of Court statement filed by the petitioner that only 17 evidence of PW.1-Rajendra Batham (petitioner) was recorded on 06.1.2023.
15. In the case of P.Sreekumar Vs. State of Kerala and others, (2018) 4 SCC 579 in paragraphs 23 to 37 it has been held as under:-
"23. Having heard the learned counsel for the appellant and Respondent 2, who appeared in person, we are inclined to allow the appeal and set aside the impugned order passed in P. Sreekumar v. Mohan Prasad [P. Sreekumar v. Mohan Prasad, 2014 SCC OnLine Ker 8926] .
24. The question, which fell for consideration before the High Court, was that if two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not.
25. The Single Judge placed reliance on three decisions of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] and R.P. Kapur v. State of Punjab [R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239] and quashed the second FIR/charge-sheet under Section 482 of the Code.
26. In our view, the High Court had committed jurisdictional error in quashing the subsequent FIR/charge-sheet, which was filed at the instance of the appellant against Respondent 3 without adverting to the law on the subject.18
27. In our opinion, the law on the subject which governs the controversy involved in the appeal is no more res integra and settled by the decision of this Court (three-Judge Bench) in Upkar Singh v. Ved Prakash [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292 : 2005 SCC (Cri) 211] and also by the subsequent decisions.
28. Their Lordships after examining all the previous case-laws on the subject laid down the following proposition of law in the following words speaking through N. Santosh Hegde, J.: (Upkar Singh case [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292 :
2005 SCC (Cri) 211] , SCC pp. 299-300, paras 23-
25) "23. Be that as it may, if the law laid down by this Court in T.T. Antony case [T.T. Antony v. State of Kerala, (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 [T.T. Antony v. State of Kerala, (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.19
25. In the instant case, it is seen in regard to the incident which took place on 20-5-1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value."
29. The aforesaid principle was reiterated by this Court (two-Judge Bench) in Surender Kaushik v. State of U.P. [Surender Kaushik v. State of U.P., (2013) 5 SCC 148 : (2013) 2 SCC (Cri) 953] in the following words: (SCC p. 158, para 24) "24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter- FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three- Judge Bench in Upkar Singh [Upkar Singh v. Ved 20 Prakash, (2004) 13 SCC 292 : 2005 SCC (Cri) 211] , the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."
30. Keeping the aforesaid principle of law in mind when we examine the facts of the case at hand, we find that the second FIR filed by the appellant against Respondent 3 though related to the same incident for which the first FIR was filed by Respondent 2 against the appellant-Respondent 3 and three bank officials, yet the second FIR being in the nature of a counter-complaint against Respondent 3 was legally maintainable and could be entertained for being tried on its merits.
31. In other words, there is no prohibition in law to file the second FIR and once it is filed, such FIR is capable of being taken note of and tried on merits in accordance with law.
32. It is for the reasons that firstly, the second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Such was not the case here; second, it was filed by the appellant as a counter-complaint against Respondent 3; third, the first FIR was against five persons based on one set of allegations whereas the second FIR was based on the allegations different from the allegations made in the first FIR; and lastly, the High Court while quashing the second FIR/charge-sheet did not examine the issue arising in the case in the light of law laid down by this Court in the two aforementioned decisions of this Court in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292 : 2005 SCC (Cri) 211] and Surender Kaushik [Surender Kaushik v. State of U.P., (2013) 5 SCC 148 : (2013) 2 SCC (Cri) 953] and simply referred the three decisions of this Court 21 mentioned above wherein this Court has laid down general principle of law relating to exercise of inherent powers under Section 482 of the Code.
33. In the light of the foregoing discussion and the four reasons mentioned above, we are unable to agree with the reasoning and the conclusion of the High Court and are, therefore, inclined to set aside the impugned order.
34. The Magistrate will now proceed to try and decide the case on merits and while doing so, he will be free to examine all the issues arising in the case from all the angles in the light of the evidence that will be adduced by the parties.
35. If the Magistrate finds that the material brought on record against any person(s) including the appellant herein in the evidence indicating the involvement of any such person(s) in commission of the alleged offences, he will be free to proceed against any such person(s) in accordance with law and bring the proceedings to its logical end uninfluenced by any of our observations.
36. Let the trial before the Magistrate concerned be over, as directed above, within a year as an outer limit.
37. With these observations and directions, the appeal succeeds and is accordingly allowed. The impugned order passed in P. Sreekumar v. Mohan Prasad [P. Sreekumar v. Mohan Prasad, 2014 SCC OnLine Ker 8926] is set aside. As a result, CC No. 2682 of 2002 on the file of JMFC II, Ernakulum is restored to its file for being tried on merits in accordance with law."
2216. In the case of Taranjeet Singh Hora Vs. State of M.P,, 2018 SCC Online MP 1769 it has been held by this Court in paragraphs 15 & 16, which is reproduced below:-
"15. The position of law which emerges from the aforesaid judgments is that subsequent FIR for different offences committed in the same transaction or offence arising as a consequence of prior offence is not permissible but the second complaint in regard to same incident filed as a counter complaint is permitted under the Cr.P.C. and the second FIR for the same nature of offence against same accused person lodged by a different person or containing the different allegations is maintainable.
16. Examining the present case in the light of the aforesaid judgment, it is found that though all the three FIRs contain the same allegation against same accused persons but they have been lodged at the instance of the different persons and these three FIRs relate to the different transaction in respect of 3 different colonies. Therefore, test of "sameness"
and "consequence" is not satisfied in the present case and no error is found in registering the three different FIRs."
17. Resultantly, looking to the facts of the present case as well as the law on the point, as discussed in the preceding paragraphs, this Court is of the view that quashment of the F.I.R. No.89/2021 registered at Police Station, EOW, Bhopal cannot be allowed as this FIR fails to satisfy the test of "sameness" and "consequences", because the complainant, accused and nature of 23 allegations in Crime No.435/2017 registered at Police Station, Industrial Area, Dewas and FIR No.89/2021 by Police Station, EOW, Bhopal are not the same. This Court has deliberately not gone deep into the matter by way of dealing with every transaction of embezzled money date by date, lest it may prejudice the case of either party during pending trial/further investigation in Crime No.435/2017.
18. Consequently, there is no merit in this petition and hence, it stands dismissed. It is made clear that the Investigating Agency is free to investigate the matter in free and fair manner without being influenced by the observations made in this order.
(Sheel Nagu) (Avanindra Kumar Singh)
Judge Judge
RM
Digitally signed by RAJESH MAMTANI
RAJESH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=0a6945bd54f15a018f6b40c1a19ae912b2ac61 a2c6708bee598e0e94ece3fd57, MAMTANI pseudonym=A198B78AEFE7D32A6418E4EE68892AE7B 2CAFD56, serialNumber=12531F5D3203601D3913EA4D0D5141A 3D6CD4708B694440693AF94978932EEEF, cn=RAJESH MAMTANI Date: 2023.07.10 13:24:44 +05'30'