Telangana High Court
Jakka Vinod Kumar Reddy And Another vs The State Of Telangana And Another on 14 June, 2021
Equivalent citations: AIRONLINE 2021 TEL 76
Author: K. Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL PETITION No.3446 OF 2021
% Delivered on: 14-06-2021
Between:
# Mr. Jakka Vinod Kumar Reddy & another .. Petitioners
Vs.
$ The State of Telangana & another .. Respondents
! For Petitioners : Mr. Dil Jit Singh Ahluwalia,
Learned counsel representing
Ms. Avula Krishnaveni,
^ For Respondent No.1 : Public Prosecutor
For Respondent No.2 : Mr. Vivek Reddy,
Learned Senior Counsel
< Gist :
> Head Note :
? Cases Referred :
1. 2018 (4) ALD 180
2. (2018) 4 SCC 579
3. (2020) 5 SCC 378
4. AIR 2021 SC 1381
5. AIR 2019 SC 847
6. AIR 2021 SC 931
7. (2014) 8 SCC 273.
KL,J
Crl.P. No.3446 of 2021
2
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.3446 OF 2021
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the proceedings in Crime No.488 of 2020 of Jubilee Hills Police Station, Hyderabad Commissionerate, along with Look-Out Circular / Interpol Notices initially.
2. Learned Public Prosecutor has submitted that during pendency of the present Criminal Petition, the police have completed investigation and filed charge sheet and the same was taken on file vide C.C. No.5893 of 2021 by the learned XIII Additional Chief Metropolitan Magistrate, Hyderabad. Pursuant to the same, the petitioners herein have filed I.A. No.2 of 2021 to amend the prayer to quash the proceedings in C.C. No.5893 of 2021, and the said I.A. was allowed by this Court vide order dated 01.06.2021.
3. The petitioners herein are accused Nos.1 and 2 in the aforesaid C.C. No.5893 of 2021. The offences alleged against them are under Sections - 498A and 506 of IPC, Sections - 4 and 6 of the Dowry Prohibition Act, 1961 and Section - 30 of the Arms Act, 1959.
4. Heard Mr. Dil Jit Singh Ahluwalia, learned counsel representing Ms. Avula Krishnaveni, learned counsel for the petitioners and Mr. K. Vivek Reddy, learned Senior Counsel representing Mr. T. Jayanth Jaya Soorya, learned counsel for KL,J Crl.P. No.3446 of 2021 3 respondent No.2 and learned Public Prosecutor appearing on behalf of respondent No.1 - State.
5. Respondent No.2 - de facto complainant and petitioner No.1
- Accused No.1 are wife and husband while accused No.2 is mother of accused No.1. The marriage to both the parties is a second marriage. Respondent No.2 earlier lodged a complaint on 14.11.2019 against the petitioners herein and Mrs. Smita Reddy, sister-in-law of accused No.1, and the same was registered as Crime No.742 of 2019 for the offences under Sections - 406, 420 and 120-B of IPC by Jubilee Hills Police Station, Hyderabad. Subsequently, respondent No.2 filed the present complaint with the very same police station on 07.10.2020 against the petitioners herein and the same was registered as Crime No.488 of 2020 for the offences under Sections - 498A and 506 of IPC, Sections - 4 and 6 of the Dowry Prohibition Act, 1961 and Section - 30 of the Arms Act, 1959. As stated above, after completion of investigation, the police have laid charge sheet in Crime No.488 of 2020 against the petitioners herein for the aforesaid offences and the same was taken on file vide C.C. No.5893 of 2021.
6. The petitioners herein filed the present criminal petition to quash the proceedings in C.C. No.5893 of 2021 (arising out of Crime No.488 of 2020 of Jubilee Hills Police Station), mainly on the ground that registration of Second First Information Report (FIR) on the very same allegations between the very same parties is impermissible and it is contrary to the law laid down by the Hon'ble Supreme Court.
KL,J Crl.P. No.3446 of 2021 4 Whereas, respondent No.2 is claiming that the allegations levelled by her in both the complaints are different and distinct, therefore, there is no error in registering the second FIR.
7. In view of the above said rival contentions, it is trite to refer to the allegations made by respondent No.2 herein in both the complaints i.e., Crime Nos.742 of 2019 and 488 of 2020, in brief, which are as under:
Crime No.742 of 2019 (1st FIR) Crime No.488 of 2020 (2nd FIR) R-2 - Sumana Paruchuri, de R2 - Sumana Paruchuri, de facto facto complainant, a successful complainant, was tenant in A1's business woman, hails from a house in 2002 after returning highly respectable family from USA;
She is wife of accused No.1; There were disputes between her and her first husband - Srinivas She possessed with sufficient Paruchuri and later obtained financial resources;
decree of divorce;
She was the original and Later, she got married A1 on absolute owner of two valuable 26.06.2011;
properties mentioned in the A1 and A2 have demanded her to complaint having purchased bring an amount of Rs.5.00 from out of her hard-earned Crores of cash towards dowry money when she was in USA up and 50 tulas of gold and 2 kgs. of to 2002;
silver, clothes worth of Rs.10.00 She came back to India and set lakhs;
up her family in a rented portion Since the date of marriage, A1 belongs to A1 and A2 never allowed her to stay She got disputes with her first in the house freely and forced husband - Paruchuri Srinivas; and coerced her to stay as per their whims and fancies;
KL,J Crl.P. No.3446 of 2021 5 She has obtained decree of She was not allowed to interact divorce on 28.03.2006 in FCOP initially with others; No.220 of 2006; They have objected with regard Later, she got married A1 to her dressing also;
The petitioners herein in active A1 used to have liquor connivance with late Jakka excessively and used to smoke Venkatrami Reddy, brother of which is against her pleasure;
A1 and husband of Smita Reddy (A3) and taking A1 and 2 have abused her and advantage of her situation harassed her, both physically and hatched a plan to knock away mentally. They also slapped her her properties and thereby and demanded additional dowry; cheated her; A2 has also slapped her and her The modes operandi adopted by children born through her first A1 to A3 is also specifically husband in the presence of mentioned; relatives;
Her both children were minors They have not permitted her to at that particular point of time;
visit the doctor for treatment to Accused requested her to the injuries received by her out of transfer her properties in their harassment meted out by A1 and names with an assurance that A2;
they would re-convey the same They have also spread rumours after concluding the divorce and about her character and thus they custody proceedings pending have tortured her both physically between her and her first and mentally;
husband;
A1 has submitted an apology Believing said version, she letter dated 18.09.2011 tendering transferred her properties by apology and assured that he executing sale deeds mentioning would take care of her welfare as therein that accused are in well as her children;
peaceful possession and enjoyment of the properties;
KL,J Crl.P. No.3446 of 2021 6 She also handed over original In October, 2012, A1 returned sale deeds to the accused; home after-noon in drunken A1 did not re-convey the condition with his friends and properties in her name as demanded her Rs.2.00 Crores as promised by him; additional dowry. Thus, both A1 To win her trust, A1 instructed and A2 harassed her, physically her to execute a Gift Deed in his and mentally for additional favour with regard to property in dowry of Rs.2.00 Crores; Sy.No.41 of Pattandur Agrahara In December, 2012 also, they Village, K.R. Puram, Hobli, repeated such act of harassment Bangalore and, accordingly, she and tried to pour kerosene on her executed a registered gift deed so as to kill her by setting on fire. dated 16.04.2007 in his favour.
In February, 2013, R2 was forced A-1 to A3 with a view to to go to her parents' house for strengthen her trust, voluntarily, bringing additional dowry.
handed over the original copy of However, her parents arranged a gift deed to her and she cash of Rs.20.00 lakhs towards continued to be the owner and additional dowry;
possessor of the said property for all practical purposes; In November, 2013, brother of A1 died due to Cancer and the Thus, A1 to A3 had developed a property arrangements were with mutual relationship of trust and him. A1 picked up quarrel with confidence with her family;
her. On that day, A1 and A2 With the blessings of elders, A1 threatened her and her children and R2 got married on by pointing out his Revolver at 26.06.2011;
them stating that they have to act A1 assured her that he would as per their instructions, register the above property in otherwise, A1 would pull the her name by way of gift deed, trigger on them to kill. Thus, her but he did not do so. Since she children suffered deep mental got married him, she did not get agony.
any doubt on him;
KL,J Crl.P. No.3446 of 2021 7 A1 addicted to smoking and On 21.12.2013, both accused drinking excessively, much to have beaten her, thrown her out her displeasure. of the house demanding additional dowry.
Thus, A1 and A2 started ill-
treating and harassing her on There is also allegation of torture daily basis; of R2 by A1 physically, mentally and sexually;
A-1 also started picking up quarrels with her on flimsy She tolerated the same keeping in grounds after drinking view the welfare of her children; excessively; A2 has also misbehaved with her She has tolerated the same and her children; keeping her matrimonial life and In the first week of Dec.2013, welfare of her children; after a huge fight ensued in There was no change in the which A1 attempted to pour attitude of A1 and A2; petrol on her and her children. In January, 2019, she came to Being scared for the safety, they know that A1 without her left their parents' house to take consent sold the property to guidance from the elders; third party without her consent, There is also allegation with and dishonestly misappropriated regard to execution of will dated the sale proceeds in active 01.08.2008 and cancellation of connivance with A2; the same on 30.12.2013;
Thus, A1 to A3 have committed A1 and A2 landed in Bangkok the offences of criminal breach along with A1's daughter, of trust and cheating arising out Vaishnavi Reddy with first his of immovable properties.
wife, R2 was waiting for them to return home and to have peaceful life;
KL,J Crl.P. No.3446 of 2021 8 Thus, there are allegations of mental and physical harassment by accused Nos.1 and 2 apart from sexual harassment by A1, and this complaint is in relation to matrimonial disputes between the parties and the harassment meted out by A1 and 2 towards R2 and her children.
8. The above said allegations made in both the complaints would reveal that accused No.1 and respondent No.2 got married on 26.06.2011 and it is a second marriage to both of them. They got children through their first spouse. The allegations made in the first FIR No.742 of 2019 against the petitioners herein and Mrs. Smita Reddy are in relation to the disputes over immovable properties originally held by respondent No.2 and the offences are with regard to criminal breach of trust and cheating etc. Whereas, the allegations made in the second FIR No.488 of 2020 against the petitioners herein are in relation to matrimonial disputes and the harassment, both physically and mentally, by Accused Nos.1 and 2 and, sexually by accused No.1, meted out towards respondent No.2 and also threatening her and her children by accused No.1 with a revolver.
9. It is relevant to note that the petitioners herein and Mrs. Smita Reddy have filed a Criminal Petition No.8023 of 2019 under Section - 482 of Cr.P.C. to quash the proceedings in Crime No.742 of KL,J Crl.P. No.3446 of 2021 9 2019. This Court vide order dated 21.12.2020 disposed of the said petition directing the Investigating Officer to follow the procedure laid down under Section - 41A of Cr.P.C. and also a direction to the petitioners to co-operate with the Investigating Officer. Challenging the same, the petitioners have filed a Special Leave to Appeal (Crl.) No.82 of 2021, and the Hon'ble Apex Court granted stay of investigation in Cr.No.742 of 2019, vide order dated 29.01.2021.
10. Referring to various proceedings including the proceedings in O.S. No.499 of 2015 pending on the file of the Principal II Civil Judge at Bengaluru and C.P. No.431/241/HDB/2020 on the file of the National Company Law Tribunal, Hyderabad, Mr. Dil Jit Singh Ahluwalia, learned counsel for the petitioners would submit that the allegations in both the complaints are one and the same; inter-linked and the parties are also same. Therefore, registration of second FIR is not maintainable. To buttress his contention, learned counsel has relied upon the principle laid down by the Hon'ble Apex Court in several judgments.
11. Mr. K. Vivek Reddy, learned senior counsel appearing on behalf of respondent No.2, would submit that the allegations in both the complaints are distinct and different. The allegations in the first FIR No.742 of 2019 are with regard to commission of offences of criminal breach of trust and cheating etc. committed by the petitioners in respect of immovable properties, while the allegations in the second FIR No.488 of 2020 are with regard to the harassment, physically, KL,J Crl.P. No.3446 of 2021 10 mentally and sexually meted out towards respondent No.2 by the petitioners herein arising out of matrimonial disputes between accused No.1 and respondent No.2. Respondent No.2 has made specific allegations against the accused in both the complaints. Even in the second complaint, there is an offence under Section - 30 of the Arms Act, 1959. He would further submit that the allegations made by respondent No.2 in both the complaints are different and distinct and there is no sameness and, therefore, he sought to dismiss the present petition. He has also placed reliance on the principle laid down by the Hon'ble Apex Court in several judgments.
12. It is relevant to note that after registration of crime and on completion of investigation, the police have laid charge sheet in Crime No.488 of 2020 and the same was taken on file vide C.C. No.5893 of 2021 by the learned XIII Additional Chief Metropolitan Magistrate, Hyderabad. A perusal of the charge sheet would reveal that the Investigating Officer has recorded the statements of as many as 15 witnesses. As on the date of filing charge sheet, since both the petitioners were in Bangkok, they are shown as absconding in the charge sheet and got issued Look Out Circular against accused No.1.
13. The above submissions made on either side and the aforesaid discussion would reveal that the allegations in both the complaints viz., Crime Nos.742 of 2019 and 488 of 2020 are different and distinct. As already mentioned above, the allegations made in the first FIR No.742 of 2019 against the petitioners herein and Mrs. Smita KL,J Crl.P. No.3446 of 2021 11 Reddy are in relation to the disputes over immovable properties originally held by respondent No.2 and the offences are with regard to criminal breach of trust and cheating etc. Whereas, the allegations made the second FIR No.488 of 2020 against the petitioners herein are in relation to matrimonial disputes and the harassment, both physical, mental and sexual meted out by the petitioners towards respondent No.2 and also threatening respondent No.2 and her children by accused No.1 with a revolver. Respondent No.2 has narrated the incidents right from 26.06.2011 in the second FIR. She has also mentioned about tendering of apology by accused No.1 through apology letter dated 18.09.2011. Thus, according to this Court, the allegations in both the complaints are different and distinct and there is no sameness except the fact that the petitioners - accused Nos.1 and 2 and respondent No.2, de facto complainant herein are common.
14. In view of the above stated facts, it is trite to note that the lis involved in the present petition is no more res integra.
15. A Division Bench of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Jakir Hussain Kosangi v. State of Andhra Pradesh1 made research with regard to maintainability of Second FIR, referring to 21 judgments of the Hon'ble Apex Court right from Ram Lal Narang v. State [(1979) 2 SCC 322] to Yanab Sheikh @ Gagu v. State of West Bengal [(2013) 6 SCC 428] and the principle laid down by a learned Single 1 . 2018 (4) ALD 180 KL,J Crl.P. No.3446 of 2021 12 Judge in Akbaruddin Owaisi v. Government of Andhra Pradesh [2013 (6) ALT 101]. The tabular form mentioned therein under the caption "Evolution of the Law" for the purpose of deciding the lis involved in the present petition is relevant and the same is extracted below:
Whether the
Second (2nd)
FIR or
S.
No. Decision The dispute arose out of Multiple FIR
filed are Valid
or Invalid
Ram Lal Narang v. State (Delhi
Administration) and Om Prakash
1. Narang & Ors v. State (Delhi Arose out of theft of Valid
Administration), two sandstone pillars of
MANU/SC/0216/1979: great antiquity
(1979) 2 SCC 322
M. Krishna v. State of Arose out of amassing
Karnataka, wealth disproportionate
2. Valid
MANU/SC/0127/1999: to one's source of
(1999) 3 SCC 247 income
Arose out of swindling
a large number of
V.K. Sharma v. Union of India, depositors on the false Valid
3. MANU/SC/0215/2000: pretext that their (Multiple
(2000) 9 SCC 449 deposits would be FIRs)
returned with interest
on a subsequent date.
(White Collar Crime)
Held: Offences
more than one
Arose out of a dowry committed by
death. Note: The the same
Mohan Bhaitha v. State of Bihar, question involved here persons could
MANU/SC/0217/2001: is not concerned about be tried at one
4. (2001) 4 SCC 350 whether there can be trial, if they
more FIRs than one but can be held to
whether there can be be in one
more trials than one. series of facts
so as to form
the same
transaction.
Arose out of police
T.T. Antony v. State of Kerala, firing resulting into Third (3rd) FIR
5. (2001) 6 SCC 350 deaths of few people and injuries to a large invalid.
number of people.
KL,J Crl.P. No.3446 of 2021 13 Arose out of swindling of a large number of Narinderjit Singh Shani and depositors on the false Valid
6. another v. Union of India, pretext that their (Multiple MANU/SC/0644/2001: deposits would be FIRs) (2002) 2 SCC 210 returned with interest on a subsequent date.
Kari Chaudhary v. Most, Sita Devi and Ors, Arose out of murder Valid
7.
MANU/SC/0781/2001: case
(2002) 1 SCC 714
Arose out of swindling
of a large number of
depositors on the false Valid
8. State of Punjab v. Rajesh Syal, pretext that their (Multiple
MANU/SC/0867/2002: deposits would be FIRs)
(2002) 8 SCC 158 returned with interest
on a subsequent date.
(White Collar Crime)
Upkar Singh v. Vedprakash, Arose out of an attempt
9. MANU/SC/0733/2004: to murder and house- Valid (2004) 13 SCC 292 trespass cases Arose out of swindling of a large number of Rameshchandra Nandlal Parikh depositors on the false Valid v. State of Gujarat
10. pretext that their (Multiple MANU/SC/2289/2006:
deposits would be FIRs)
(2006) 1 SCC 732
returned with interest
on a subsequent date.
Vikram v.State of Maharashtra,
11. MANU/SC/7628/2007: Arose out of murder Valid
(2007) 12 SCC 332 case
Arose out of swindling
of a large number of
Pramod Kumar Saxena v. Union depositors on the false Valid
of India and Ors, pretext that their (Multiple
12.
MANU/SC/8060/2008: deposits would be FIRs)
(2008) 9 SCC 685 returned with interest
on a subsequent date.
Nirmal Singh Kahlon v. State of Arose out of scandal Punjab and Others, involving selection of
13. Valid MANU/SC/8189/2008: Panchayat Secretaries (2009) 1 SCC 441 Investigation of the Second C. Muniappan and others v. State Arose out of setting fire FIR was of Tamil Nadu, to a university bus and clubbed with
14.
MANU/SC/0655/2010: several public buses. the
(2010) 9 SCC 567 investigation
of the First
FIR. In
essence, two
complaints/FI
Rs are clubbed
KL,J
Crl.P. No.3446 of 2021
14
together and
investigated
jointly.
Arose out of altercation
15. Bahubhai v. State of Gujarat, that took place between Invalid
MANU/SC/0643/2010: members of the two
(2010) 12 SCC 254 communities.
Second F.I.R.
held valid
because SHO
made a
mistake by
recording
information as
Chirra Shivraj v. State of AP, a fresh F.I.R.
16. MANU/SC/0992/2010: Arose out of an attempt and that this
(2010) 14 SCC 444 to murder case mistake should
not make the
case of
prosecution
weak
especially
when no
prejudice had
been caused.
Shiv Shankar Singh v.State of Arose out of decoity
17. Bihar, MANU/SC/1373/2011: and murder Valid (2012) 1 SCC 130 Surender Kaushik and others v. Arose out of fake and State of UP, fraudulent documents
18. Invalid MANU/SC/0131/2013: prepared by the accused (2013) 5 SCC 148 persons.
Amitbhai Anilchandra Shah v. Arose out of murder
19. CBI, MANU/SC/0329/2013: cases Invalid (2013) 6 SCC 348 Anju Chowdry v. State of UP, Arose out of hate
20. MANU/SC/1129/2012: speech Valid (2013) 6 SCC 384 Yanab Sheikh @ gagu v. State of West Bengal Arose out of a murder
21. Invalid MANU/SC/1122/2012: case.
(2013) 6 SCC 428 The Division Bench finally held as follows:
"50. From the above table, it could be seen that the cases in which the validity of multiple FIRs was raised, fell at lease into six categories, such as (1) murder/attempt to murder; (2) mob violence leading to destruction of property, murder and/or encounter; (3) theft/dacoity; (4) abuse of official KL,J Crl.P. No.3446 of 2021 15 position, adoption of corrupt practices and amassing of wealth; (5) hate speech; and (6) companies receiving deposits from innumerable persons and there after defaulting in repayment. Out of the 21 cases listed above, 5 cases alone relate to non-repayment of deposit money by finance companies. In all these five cases where innumerable complaints were lodged by depositors, the Supreme Court did not choose to interfere. Therefore, the decision of the Supreme Court in TT Antony on which heavy reliance is placed by the counsel for the petitioners cannot go to the rescue of the petitioners.
51. Despite the fact that the decision of the Two Member bench in T.T. Antony was not taken note of in (i) Narinderjit Singh Sahni, (ii) State of Punjab v. Rajesh Syal and (iii) Pramod Kumar Saxena, it is clear that in all those 3 decisions, the Supreme Court was concerned with the cases of persons who collected money from innumerable persons but failed to repay the same. The decision in T.T. Antony arose out of offences relating to Law and Order, Public Order and the Police Firing."
i) While referring to the principle laid down by the learned Single Judge in Akbaruddin Owaisi's Case (Supra), the Division Bench held that some of the judgments, which are subsequent to T.T. Antony v. State of Kerala (2001 Cri.L.J. 3329), were not brought to the notice of the learned Single Judge and, therefore, the learned Single Judge referring to the principle enunciated by the Hon'ble Apex Court in T.T. Antony's Case, laid down certain parameters KL,J Crl.P. No.3446 of 2021 16 with regard to registration and continuation of second FIR. Referring to the contentions raised in Akbaruddin Owaisi's Case, the Division Bench held that the decision in Akbaruddin Owaisi's Case which arose out of registration of multiple FIRs in relation to a single speech can have no application to the facts of the case in Jakir Hussain Kosangi1.
ii) It is relevant to note that in Jakir Hussain Kosangi1, the petitioners therein sought to issue a writ of mandamus to declare the action of the respondents' police in allowing the registration of multiple FIRs and conducting an investigation into all of them in relation to the same set of facts, as unconstitutional. They have also sought a direction to set aside all the Prisoner Transit Warrants issued against them. The said case is commonly known as 'Agri Gold Scam'. Originally, M/s. Akshaya Gold Farms and Villas India Limited and their Directors have received deposits from various persons running into lakhs with a promise to repay the same with interest. But, they failed to repay the same which led to registration of several FIRs in all over the Country. Considering the said facts and referring to the law laid down by the Hon'ble Apex Court in various judgments which are 21 in number, and also the judgment in Akbaruddin Owaisi's Case, the Division Bench held that registration of second FIR and investigation of same is maintainable on certain facts.
KL,J Crl.P. No.3446 of 2021 17
16. The principle laid down in P. Sreekumar v. State of Kerala2, Samta Naidu v. State of Madhya Pradesh3 and Krishna Lal Chawla v. State of U.P.4 is subsequent to the judgment in Jakir Hussain Kosangi1 and, therefore, there is no reference and consideration of the said principle by the Division Bench in Jakir Hussain Kosangi1. Thus, according to this Court, it is also relevant to refer to the principle laid down by the Apex Court in the said judgments.
17. In P. Sreekumar2, the dispute was with regard to the complaints lodged by the Trustees of M/s. Vidyodaya Trust. Two FIRs were registered on the allegations of conspiracy and forgery of signatures in relation to siphoning off an amount of Rs.42.00 lakhs belong to the said Trust by manipulation and forging the accounts books and several other documents of the Trust. The second complaint was also almost on the very same allegations including the allegation of misuse of the post of the said Trust. The Hon'ble Apex Court referring to the principle laid down by it in earlier judgments including the judgment in Upkar Singh v. Vedprakash [(2004) 13 SCC 292] and also the facts of the said case held that the second FIR is maintainable since though it is related to the same incident for which the first FIR was registered and the allegations in the second FIR are in the nature of counter-complaint and, therefore, it was 2 . (2018) 4 SCC 579 3 . (2020) 5 SCC 378 4 . AIR 2021 SC 1381 KL,J Crl.P. No.3446 of 2021 18 maintainable. The Hon'ble Apex Court laid down certain principles with regard to the maintainability of second FIR which are as follows:
(i) 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;
(ii) a counter-complaint by different complainant; and
(iii) 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;
18. In Samta Naidu3, the Hon'ble Apex Court while dealing with the facts of the case therein with regard to the dispute between the sons of late G.S. Naidu in relation to sale of a Maruti-800 Vehicle by forging signature of their father held that the allegations in both the complaints are one and the same and, therefore, the second complaint/FIR is not maintainable. The Hon'ble Apex Court considered the principle of sameness therein.
19. In Krishna Lal Chawla4 an altercation took place between the parties therein on 5.08.2012, two crimes were registered, and the Hon'ble Apex Court in exercise of inherent powers under Article - 142 of the Constitution of India to do complete justice, held that the second FIR is on the very same set of allegations between the very same parties and, therefore, the same is not maintainable and in KL,J Crl.P. No.3446 of 2021 19 exercise of power under Article - 142 of the Constitution of India, quashed the proceedings in both the crimes.
20. The sum and substance of the above said judgments is that there is no embargo for registration of two FIRs on the following circumstances/grounds:
(a) where the allegations made in both the FIRs are from different spectrum, where there are different versions from different persons;
(b) same set of facts may constitute different offences;
(c) where there are two distinct offences having different ingredients;
(d) where the allegations are different and distinct;
(e) when there are rival versions in respect of same episode, they would normally take shape of two different FIRs and investigation can be carried out under both of them by the same Investigating Agency.
21. The Court which is examining permissibility of registration of second FIR has to consider whether there is substance of allegation and overlapping feature made in both the complaints. The Court has to further consider the truth of sameness and that whether the allegations are different and distinct. If the allegations in both the complaints are same between same persons, then registration of second FIR is not maintainable.
KL,J Crl.P. No.3446 of 2021 20
22. In view of the above authoritative principle laid down by the Hon'ble Apex Court referred to above, coming to the case on hand, as discussed above, the allegations made in both the complaints are different and distinct. At the cost of repetition, it is trite to note that the allegations/disputes in the first FIR are with regard to property disputes and the allegations/disputes in the second FIR are with regard to matrimonial disputes. Therefore, there is no sameness in the allegations made by respondent No.2 in both the complaints. Thus, the contention of the petitioners that registration of second FIR is illegal is unsustainable. There are several triable issues and the factual aspects which are to be considered by the trial Court during the trial. The petitioners have to face trial and prove their innocence.
23. The Hon'ble Apex Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra5 has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are 5 . AIR 2019 SC 847 KL,J Crl.P. No.3446 of 2021 21 disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that, prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
24. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh6, the Hon'ble Apex Court referring to the earlier judgments rendered by it has categorically held that the High Courts in exercise of its inherent powers under Section - 482 of Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
6 . AIR 2021 SC 931 KL,J Crl.P. No.3446 of 2021 22
25. Therefore, in view of the law laid down by the Hon'ble Apex Court, since there are several triable issues, this Court is not inclined to quash the proceedings in C.C. No.5893 of 2021.
26. The learned counsel for the petitioners would submit that the police without following the procedure laid down under Section - 41A of Cr.P.C., without following the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar v. State of Bihar7 and without conducting fair and transparent investigation, laid the charge sheet against the petitioners herein showing them as absconding. The police have also issued LOC against accused No.1, so that they will be arrested on their return to India from Bangkok.
27. A perusal of the charge sheet in Crime No.488 of 2020 would reveal that there is no specific mention with regard to the efforts made by the Investigating Officer to serve the notices under Section - 41A of Cr.P.C. on the petitioners herein. Admittedly, the petitioners herein are in Bangkok, even then, the Investigating Officer filed the charge sheet showing them as absconding.
28. Considering the said fact and also the fact that the police have already filed charge sheet which was taken on file vide C.C. No.5893 of 2021 and a request was made by the Investigating Officer to issue Non-Bailable Warrant against the petitioners, this Criminal Petition is disposed of granting liberty to the petitioners herein to appear before the XIII Additional Chief Metropolitan Magistrate, 7 (2014) 8 SCC 273.
KL,J Crl.P. No.3446 of 2021 23 Hyderabad, file an application to recall NBWs, if any, issued against them within one month from today and, thereafter they shall appear before the said Court on the next date of hearing without contending that they are not having knowledge of date of hearing. However, the Police Officials of RGI Police Station, Immigration Authorities or any other Authority shall not arrest the petitioners either under the guise of issuance of LOC, pendency of same or under the guise of NBW, if any, pending against them in C.C. No.5893 of 2021.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 14th June, 2021 Note: L.R. Copy to be marked (B/O.) Mgr