Karnataka High Court
Sri Murugesh Rudrappa Nirani vs State Of Karnataka on 13 October, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 105409 of 2023
C/W WP No. 105374 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 105409 OF 2023 (GM-RES)
C/W
WRIT PETITION NO. 105374 OF 2023 (GM-RES)
IN WRIT PETITION NO. 105409 OF 2023
BETWEEN:
1. SRI MURUGESH RUDRAPPA NIRANI
S/O RUDRAPPA
AGED ABOUT 57 YEARS
R/O KULALI CROSS
MUDHOL TALUK
BAGALKOT - 587 313.
2. SRI SANGAMESH RUDRAPPA NIRANI
Digitally signed
S/O RUDRAPPA NINGAPPA NIRANI
by
AGED ABOUT 46 YEARS
VIJAYALAKSHMI VIJAYALAKSHMI
M KANKUPPI M KANKUPPI
Date: 2023.11.03
12:51:23 +0530
R/O KULLALI CROSS
MUDHOL TALUK
BAGALKOT DISTRICT - 587 313.
...PETITIONERS
(BY SRI RAJASHEKHAR BURJI, ADVOCATE
SRI AJAYA KADKOL, ADVOCATE AND
SRI HARISH S.MAIGUR, ADVOCATE)
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WP No. 105409 of 2023
C/W WP No. 105374 of 2023
AND:
1. STATE OF KARNATAKA
R/BY STATION HOUSE OFFICER
MUDHOL POLICE STATION
MUDHOL - 587 313.
2. HANAMANT VASANT SHINDE
S/O VASANT
AGED ABOUT 42 YEARS
R/O MUDHOL, GANDHI CIRCLE
MUDHOL, BAGALKOT - 587 313.
...RESPONDENTS
(BY SRI V.S.KALASURMATH, HCGP FOR R1;
SRI B.C.JNANAYYASWAMI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO A. ISSUE AN
APPROPRIATE WRIT, ORDER AND JUDGMENT QUASHING THE
FIRST INFORMATION REPORT IN CRIME NO.230/2023
REGISTERED AT MUDHOL POLICE STATION, MUDHOL, ON
28-08-2023, ARRAGING THE PETITIONERS HEREIN AS
ACCUSED NO.S 1 AND 2 RESPECTIVELY, FOR THE ALLEGED
COMMISSION OF OFFENCES WHICH ARE MADE PENAL UNDER
SECTIONS 143, 147, 323, 324, 109 AND 149 OF THE INDIAN
PENAL CODE, WHICH IS PRODUCED AT ANNEXURE-A1.
IN WRIT PETITION NO. 105374 OF 2023
BETWEEN:
SRI MURUGESH RUDRAPPA NIRANI
S/O RUDRAPPA
AGED ABOUT 57 YEARS
R/O KULALI CROSS, MUDHOL TALUK
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WP No. 105409 of 2023
C/W WP No. 105374 of 2023
BAGALKOT - 587 313.
...PETITIONER
(BY SRI RAJASHEKHAR BURJI, ADVOCATE
SRI AJAYA KADKOL, ADVOCATE AND
SRI HARISH S.MAIGUR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY STATION HOUSE OFFICER
MUDHOL POLICE STATION
MUDHOL.
2. YALLAPPA NINGAPPA
HEGADE URF HEGADYAR
S/O NINGAPPA
AGED ABOUT 31 YEARS
RESIDENT OF METAGUDD VILLAGE
MUDHOL
BAGALKOT - 587 313.
...RESPONDENTS
(BY SRI V.S.KALASURMATH, HCGP FOR R1;
SRI B.C.JNANAYYASWAMI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO A. ISSUE AN
APPROPRIATE WRIT, ORDER AND JUDGMENT QUASHING THE
FIRST INFORMATION REPORT IN CRIME NO.231/2023
REGISTERED AT MUDHOL POLICE STATION, MUDHOL, DATED
28-08-2023 ARRANGING THE PETITIONER HEREIN AS AN
ACCUSED FOR THE ALLEGED COMMISSION OF OFFENCES
WHICH ARE MADE PENAL UNDER SECTIONS 143, 147, 148,
341, 427, 323, 324, 307, 109, 120B, 504, 506 AND 149 OF
THE INDIAN PENAL CODE, WHICH IS PRODUCED AT
ANNEXURE-A1.
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C/W WP No. 105374 of 2023
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
WRIT PETITION NO.105374 of 2023:
The petitioner is before this Court calling in question registration of crime in Crime No.231 of 2023 for offences punishable under Sections 143, 147, 148, 341, 427, 323, 324, 307, 109, 120B, 504, 506 and 149 of the IPC, pending before the Additional Civil Judge (Senior Division) & CJM Court, Mudhola, Bagalkot District.
2. Heard Sri Rajashekhar Burji, learned counsel appearing for the petitioner, Sri V.S.Kalasurmath, learned High Court Government Pleader appearing for respondent No.1 and Sri B.C.Jnanayyaswami, learned counsel appearing for respondent No.2.
3. The facts, in brief, germane are as follows:-
The petitioner claims to be an entrepreneur and is in public life being a Member of Legislative Assembly from Biligi constituency. The issue in the lis emerges from registration of -5- NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 a crime in Crime No.231 of 2023 arraigning the petitioner as accused pursuant to a complaint registered on 28-08-2023. The allegation in the complaint was that, at 10.00 a.m. on 28.08.2023, the complainant along with several others were travelling in a car bearing No.KA-03 NN-0736 at which time, a white colour Bolero car crashed into the car in which the complainant was travelling and 5 persons unknown to the complainant covering themselves were in possession of iron rods and chilli power, threw chilli power upon the complainant and others and assaulted them. It is further alleged that the complainant and others were threatened by those who had attacked them for their life and the reason thereof was that they were protesting against the petitioner. This formed the fulcrum of the complaint against the petitioner which becomes a crime in Crime No.231 of 2023 for several of the offences afore-quoted. The registration of the crime has driven the petitioner to this Court in the subject petition.
4. The reason for challenging registration of crime in Crime No.231 of 2023 is that, a crime in Crime No.230 of 2023 had already been registered on the very same incident and on -6- NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 very same narration though the offences were slightly different.
The crime No.230 of 2023 is challenged in the companion petition - W.P.No.105409/2023. The offences in Crime No.230 of 2023 were the ones punishable under Sections 143, 147, 323, 324, 109 and 149 of the IPC. The complainant therein was one Hanamant Vasant Shinde.
5. This Court in terms of its order dated 31-08-2023 grants an interim order of stay only insofar as it pertains to Crime No.231 of 2023 as it was prima facie felt that it was hit by doctrine of sameness.
6. The learned counsel appearing for the petitioner would vehemently contend that the present crime in which offences are glorified is second in line. It is registered barely two hours after registration of crime in Crime No.230 of 2023 in which the cognizable offence was the one punishable under Section 324 of the IPC and the remaining were all non-cognizable. He would seek quashment of the entire proceedings in Crime No.231 of 2023 by seeking to place reliance upon the judgment of this Court in the case of B.V. BYRE GOWDA v. NISAR -7- NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 AHMED AND OTHERS in Criminal Petition No.3171 of 2018 decided on 20-09-2021.
7. On the other hand, the learned High Court Government Pleader would vehemently refute the submissions to contend that what is now registered is only a crime. The police may even file a 'B' report. Therefore, it is too premature for the petitioner to contend that a crime registered on 28-08-2023 is hit by doctrine of sameness. He would seek dismissal of the petitions.
8. The learned counsel for the complainant - respondent No.2 though vehemently refute the submissions of the learned counsel for the petitioner but would only seek indulgence to permit the statements recorded or the proceedings taken in Crime No.231 of 2023 to be used as statements under Section 161 of the Cr.P.C. in Crime No.230 of 2023 as he is not in a position to dispute the question of law with regard to two proceedings emerging from a solitary crime.
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9. After the grant of interim order on 31-08-2023, in the subject writ petition, another petition comes to be filed on 01.09.2023 challenging the crime in Crime No.230 of 2023, which is impugned in the companion petition -
W.P.No.105409/2023. Since both these crimes arise out of a solitary incident, they were taken up together and considered by this order.
10. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
11. The afore-narrated facts are not in dispute and they lie in a narrow compass. The entire issue has now sprung from the complaint. The complaint is registered on 28-08-2023. The narration is that, on 28-08-2023 at about 10.00 a.m. the incident happens. The incident is that, a Bolero vehicle crashes into the car of the complainant and others after which several unknown persons covered themselves with masks and armed with rods and chilli powder assaulted the complainant and others and also threatened them for their lives. This becomes -9- NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 a crime in Crime No.231 of 2023. This is registered at 7.45 p.m:19-45 hours at Mudhol Police Station. By then one more crime had already been registered i.e., Crime No.230 of 2023.
That was registered before the very same Police Station two hours ago on the same day i.e., on 28.08.2023 at 5.00 p.m; 17 hours. The time of the incident is the same i.e., between 10.10 a.m. and 10.11 a.m. i.e., difference of one minute. Therefore, it becomes a classic case where two crimes are registered in the same police station against the same accused on the same incident and the difference is one minute as narrated in the complaint and two hours for registration of crime. What is done in Crime No.230/2023, that is registered at 17 hours there is no offence alleged which is punishable under Section 307 of the IPC. In a crime registered after about two hours on the same incident, the offence under Section 307 of the IPC is included. Therefore, if this cannot be held to be hit by doctrine of sameness, it is un-understandable as to which one can be so. Therefore, on this solitary ground since registration of crime in Crime No.231 of 2023 is hit by doctrine of sameness, it is rendered unsustainable.
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12. The issue with regard to whether a crime can be quashed on it being hit by doctrine of sameness need not detain this Court for long or delve deep into the matter. This Court in BYRE GOWDA (supra) has held as follows:
"11. Before embarking upon the journey of considering the facts obtaining in the case at hand, I deem it appropriate to notice the flow of law as laid down by the Apex Court with regard to registration of second complaint on the very same incident. The Apex Court right from the judgment in the case of T.T. ANTONY (supra) has held as follows:
"15. On these contentions, four points arise for determination:
(i) whether registration of a fresh case, Crime No. 268 of 1997, Kuthuparamba Police Station on the basis of the letter of the DGP dated 2-7-1997 which is in the nature of the second FIR under Section 154 CrPC, is valid and it can form the basis of a fresh investigation;
(ii) whether the appellants in Appeals Nos.
689 and 4066 of 2001 [arising out of SLPs (Crl.) Nos. 1522 and 8840 of 2000] and the respondent in Appeals Nos. 690-91 of 2001 [arising out of SLPs (Crl.) Nos. 2724-25 of 2000] have otherwise made out a case for quashing of proceedings in Crime No. 268 of 1997, Kuthuparamba Police Station;
(iii) what is the effect of the report of Shri K. Padmanabhan Commission of Inquiry; and
(iv) whether the facts and the circumstances of the case justify a fresh investigation by CBI.
... ... ... ...
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WP No. 105409 of 2023
C/W WP No. 105374 of 2023
18. An information given under sub-section (1) of Section 154 CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 CrPC. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report -- FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 during investigation the truth is detected; it does not require filing of fresh FIR against H -- the real offender
-- who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.
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.
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35. For the aforementioned reasons, the registration of the second FIR under Section 154 CrPC on the basis of the letter of the Director General of Police as Crime No. 268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crimes Nos. 353 and 354 of 1994 for making further investigations and filing a further report or reports under Section 173(8) CrPC before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268 of 1997 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside."
(emphasis supplied) Again the Apex Court in the case of Babubhai (supra) holds as follows:-
"23. If the two FIRs are read together, it becomes clear that the incident started in the morning as per both the FIRs CR No. I-154 of 2008, lodged by Mr M.N. Pandya, Sub-
Inspector of Police, stated that he reached the place of occurrence after receiving the information from the police station and found that the mob had already dispersed. The case of the prosecution is that when the police reached the place of occurrence of the first incident, the mob had already dispersed, could not be correct for the reason that some of the witnesses have stated that the clash was going on when the police arrived and police resorted to force to disperse the mob. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals."
(emphasis supplied)
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 In the case of SURENDER KAUSHIK (supra), the Apex Court holds as follows:
"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 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."
(emphasis supplied) In the case of ANJU CHAUDHARY (supra), the Apex Court holds as follows:
"14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officer-in-charge of a police station. This implies that there has to be the first information report about an incident which
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the investigating agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, re-examination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, reinvestigation or de novo investigation is beyond the competence of not only
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. (Ref. Reeta Nag v. State of W.B. [(2009) 9 SCC 129: (2009) 3 SCC (Cri) 1051] and Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762] of the same date.) (emphasis supplied) In the case of P. SREEKUMAR (supra) the Apex Court holds as follows:-
"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;
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 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 mentioned above wherein this Court has laid down general principle of law relating to exercise of inherent powers under Section 482 of the Code."
(emphasis supplied) In the case of ARNAB RANJAN GOSWAMI (supra), the Apex Court holds as follows:
"37. In the present case, all the FIRs or complaints which have been lodged in diverse jurisdictions arise out of one and the same incident -- the broadcast by the petitioner on 21- 4-2020 on R. Bharat. The broadcast is the foundation of the allegation that offences have been committed under the provisions of Sections 153, 153-A, 153-B, 295-A, 298, 500, 504 and 506 IPC. During the course of the hearing, this Court has had the occasion, with the assistance of the learned Senior Counsel, to peruse the several complaints that were filed in relation to the incident dated 21- 4-2020. They are worded in identical terms and leave no manner of doubt that an identity of cause of action underlies the allegations levelled against the petitioner on the basis of the programme which was broadcast on 21-4-2020. Moreover, the language, content and sequencing of paragraphs and their numbering is identical. It was in this backdrop that Mr Kapil Sibal, learned Senior Counsel fairly submitted (in our view correctly) that this Court may proceed to quash all the other FIRs and complaints lodged in diverse jurisdictions in the States, leaving open, however, the investigation in respect of FIR No. 238 of 2020 dated 22-4-2020 transferred from Police Station Sadar, District
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 Nagpur City to N.M. Joshi Marg Police Station in Mumbai.
... ... ... ...
39. A litany of our decisions -- to refer to them individually would be a parade of the familiar -- has firmly established that any reasonable restriction on fundamental rights must comport with the proportionality standard, of which one component is that the measure adopted must be the least restrictive measure to effectively achieve the legitimate State aim. Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate State aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the petitioner, who is a journalist."
(emphasis supplied) The law in this regard as laid down in the aforesaid cases is followed in the latest judgment of the Apex Court in the case of KRISHNA LAL CHAWLA (supra) wherein, it is held as follows:
"6. Indeed, a closer look at the decision in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211] takes us to the contrary conclusion. In regard to the question of material improvements made in a
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 subsequent private complaint by the same complainant against the same accused with regard to the same incident, it may be useful to refer to the following excerpt from Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], which further clarifies the holding in T.T. Antony [T.T. Antony v. State of Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048]:
(Upkar Singh case [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], SCC pp.
297-98, para 17) "17. ... In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code."
(emphasis supplied in the original) It is the aforementioned part of the holding in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211] that bears directly and strongly upon the present case.
(emphasis supplied) If the law that is laid down by the Apex Court in the afore-extracted judgments is considered, what would unmistakably emerge is, registration of second FIR on the same incident would be hit by the "doctrine of sameness" and will have to be annihilated as it would amount to improving the facts and the case in the subsequent complaint on the same incident. On the bedrock of the principles laid down in the afore-
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 extracted judgments of the Apex Court, the case at hand will have to be considered.
12. The incident had occurred on 18.04.2018. It was concerning putting up of buntings and their removal on account of being declaration of elections to the Legislative Assembly of Karnataka State. The buntings were put up on the occasion of arrival of Sri Amit Shah, for an election rally. The Code of Conduct was also in place having been issued by the Election Commission and the Election Commission of India has been issuing orders from time whenever elections take place. The order dated 7th October, 2008 is followed even on 13th March, 2021 for General Elections. The order insofar as it is relevant for the purpose of this lis is extracted herein for the purpose of quick reference:
"DEFACEMENT OF PUBLIC PLACES 4(a) No wall writing, pasting of posters/papers or defacement in any other form, or erecting/displaying of cutout, hoardings, banners, flags etc. shall be permitted on any Government premises (including civil structures therein). For this purpose a Government premise would include any Govt. office and the campus wherein the office building is situated.
(b) If the local law expressly permits or provides for writing of slogans, displaying posters, etc., or erecting cut-outs, hoardings, banners, political advertisement, etc., in any public place, (as against a Government premise) on payment or otherwise, this may be allowed strictly in accordance with the relevant provisions of the law and subject to Court orders, if any on this subject. It should be ensured that any such place is not dominated/monopolized by any particular party(ies) or candidate(s). All parties and candidates should be provided equal opportunity in this regard.
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023
(c) If there is a specifically earmarked place provided for displaying advertisements in a public place e.g. bill boards, hoardings etc. and if such space is already let out to any agency for further allocation to individual clients, the District Election Officer through the municipal authority concerned, if any, should ensure that all political parties and candidates get equitable opportunity to have access to such advertisement space for election related advertisements during the election period."
The defacement of property in terms of Election Commission would be in violation of Disfigurement Act as could be seen from the Annexure appended to the said order. Clause 10 of the order, reads as follows:
Sl.No. 10. Name of State/UT Karnataka Name of Act/Rule The Karnataka Open
Places (Prevention of Disfigurement) Act, 1981 as amended vide Act of 1983.
Extent of Applicability It extends to Bangalore, Mysore, Hubli, Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976, or under any other law on 5-05-1981 and come into force in the Municipalities, notified areas, sanitary Boards, constituted or continued under the Karnataka Municipalities act, 1964, or under any other law, or in any other local area, on such date as the State Govt. may by notification appoint."
(emphasis added)
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 The action of putting up buntings and their removal took place between 6 a.m. and 9 a.m., resulting in registration of complaint by Mr.Nisar Ahmed, an Official of the Municipality. The allegation was violation of Section 3 of the Disfigurement Act. Section 3 of the Disfigurement Act, 1981 reads as follows:
"3. Penalty for unauthorized disfigurement by advertisement. - Whoever by himself or through another person affixes to, or erects, inscribes or exhibits on, any place open to public view any advertisement without the written permission of the local authority having jurisdiction over such area, shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both:
Provided that nothing in this section shall apply to any advertisement which, -
(i) is exhibited within the window of any building if the advertisement relates to the trade, profession or business carried on in that building;
or
(ii) relates to the trade, profession or business carried on within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or to any sale, entertainment or meeting to be held on or upon or in the same; or
(iii) relates to the name of the land or building upon or over which the advertisement is exhibited, or to name of the owner or occupier of such land or building; or
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023
(iv) relates to the business of a railway administration and is exhibited within any railway station or upon any wall or other property of a railway administration.
(v) is affixed to or exhibited on any ancient and historical monument declared to be of national importance under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Central Act XXIV of 1958)."
The violation or contravention of the afore-quoted law forms the basis of the complaint registered at 9 a.m. by Sri Nisar Ahmed. The violations alleged in the said complaint which became an FIR in Crime No.223 of 2018, are in terms of Representation of Peoples Act, Disfigurement Act and Section 171H of the IPC. The relevant portion of the FIR reads as follows:
"2. PÁAiÉÄÝ ªÀÄvÀÄÛ PÀ®AUÀ¼ÄÀ : REPRESENTATION OF PEOPLE ACT, 1951 & 1988 (U/S- 127A); KARNATKA OPEN PLACE DISFIGUREMENT ACT 1951 & 1981 (U/S- 3); IPC 1860 (U/S- 171 H)
3. (a) PÀÈvÀå £ÀqÉzÀ ¢£À: Wednesday ¢£ÁAPÀ ¢AzÀ: 18/04/2018 ¢£ÁAPÀÀ ªÀgÉUÉ:
18/04/2018 ªÉüɬÄAzÀ:06:00:00 ªÉüÉAiÀĪÀgÉUÉ:06:10:00
(b) oÁuÉAiÀÄ°è ªÀvÀðªÀiÁ£À ¹éÃPÀj¹zÀ ¢£ÁAPÀ:18/04/2018 09:00:00 §gÀªÀtÂUÉAiÀÄ°è / ºÉýPÉ : Written
(c) ¦AiÀiÁðzÀÄzÁgÀ / ¨ÁwäÃzÁgÀ vÀqÀªÁV ªÀgÀ¢ ªÀiÁrzÀPÉÌ PÁgÀtUÀ¼ÀÄ:
- -
(d) d£ÀgÀ¯ï qÉÊj G¯ÉèÃR ¸ÀASÉå ªÀÄvÀÄÛ ¸ÀªÀÄAiÀÄ: 2, 09:00:00 4(a) PÀÈvÀå £ÀqÉzÀ ¸ÀܼÀ: J C Circle, Hosakote Town, Bengaluru Dist, Karnataka.
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NC: 2023:KHC-D:12462
WP No. 105409 of 2023
C/W WP No. 105374 of 2023
(b) ¥ÉÆðøï oÁuɬÄAzÀ EgÀĪÀ ¢PÀÄÌ ªÀÄvÀÄÛ zÀÆgÀ: Towards East 1
(c) UÁæªÀÄ: HOSAKOTE UÀ¹Û£À ºÉ¸ÀgÀÄ: BEAT NO.1
(d) ¸ÀܼÀªÀÅ ¨ÉÃgÉ ¥Éưøï oÁuÉ ªÁå¦ÛUÉ §gÀĪÀAvÀºÀzÀÄÝ DzÀgÉ D ¥Éưøï
oÁuÉAiÀÄ ºÉ¸ÀgÀÄ: f¯Éè:
5. ¦AiÀiÁðzÀÄzÁgÀ / ¨ÁwäÃzÁgÀ:
(a) ºÉ¸ÀgÀÄ : Nisar Ahmed vÀAzÉ / UÀAqÀ£À ºÉ¸ÀgÄÀ : Nazeer
Ahmed
(b) ªÀAiÀĸÀÄì : 55 (c) ªÀÈwÛ : Govt. official
gazetted
The accused were workers of BJP. The allegations in the FIR as contained in Clause 10 read as follows:
"10. ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢AiÀÄ «ªÀgÀUÀ¼ÀÄ ¢£ÁAPÀ 18.04.2018 gÀAzÀÄ ¨É½UÉÎ 09.00 UÀAmÉUÉ ¤¸Ágï CºÀªÀÄäzï, 55 ªÀµÀð, ¥ËgÁAiÀÄÄPÀÛgÀÄ, ºÉƸÀPÉÆÃmÉ £ÀUÀgÀ ¸À¨És ºÁUÀÆ ¥Éè¬ÄAUï ¸Á̪Àqï vÀAqÀzÀ ªÀÄÄRå¸ÀÜgÀÄ, ºÉƸÀPÉÆÃmÉ «zsÁ£À ¸À¨Ás PÉëÃvÀæ ¸ÀASÉå 178, ªÉƨÉÊ¯ï £ÀA.9481342786 gÀªÀgÀÄ oÁuÉUÉ ºÁdgÁV ¤ÃrzÀ zÀÆj£À ¸ÁgÁA±ÀªÉ£ÉAzÀgÉ ºÉƸÀPÉÆÃmÉ «zsÁ£À ¸À¨sÁ PÉëÃvÀæ ¸ÀASÉå 178 UÉ ºÁUÀÆ ¥Éè¬ÄAUï ¸Á̪Àqï vÀAqÀzÀ ªÀÄÄRå¸ÀÜgÁV PÀvÀðªÀåPÉÌ £ÉêÀÄPÀ ªÀiÁrzÀÄÝ, ¢£ÁAPÀ 18.04.2018 gÀAzÀÄ ¨É½UÉÎ £Á£ÀÄ ºÉƸÀPÉÆÃmÉ mË£ï £À°è gËAqïì ªÀiÁrPÉÆAqÀÄ f.¹.¸ÀPÀð°UÉ §AzÁUÀ f.¹.¸ÀPÀð¯ï£À°è ©eɦ ¥ÀPÀëzÀ §AnAUïìUÀ¼À£ÀÄß ºÁQzÀÄÝ §AnAUïìUÀ¼À£ÀÄß ºÁPÀ®Ä AiÀiÁªÀÅzÉ C£ÀĪÀÄw ¥ÀqÉ¢gÀĪÀÅ¢®è, DzÀÝjAzÀ C£ÀĪÀÄw ¥ÀqÉAiÀÄzÉ §AnAPïìUÀ¼À£ÀÄß ºÁQgÀĪÀªÀgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ jÃvÁå PÀæªÀÄ dgÀÄV¸À®Ä PÉÆÃgÀÄvÉÛãÀ EvÁå¢AiÀiÁV ¤ÃrzÀ zÀÆj£À ªÉÄÃgÉUÉ."
(emphasis added) Immediately thereafter, a second complaint came to be registered against the petitioner and several others alleging the offences punishable under Sections 504, 332 and 353 of the IPC, which came to be registered as Crime No.224 of 2018. The second FIR reads as follows:
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 "1. f¯Éè: Bengaluru Dist. ªÀÈvÀÛ/G¥À«¨sÁUÀ: Hosakote Circle ¥Éưøï oÁuÉ: Hosakote PS C¥ÀgÁzsÀ ¸ÀASÉå : 0224/2018 ¥Àæ.ªÀ.ªÀ.¢£ÁAPÀ : 18/04/2018
2. PÁAiÉÄÝ ªÀÄvÀÄÛ PÀ®AUÀ¼ÄÀ : IPC 1860 (U/S- 504, 332, 353)
3. (a) PÀÈvÀå £ÀqÉzÀ ¢£À: Wednesday ¢£ÁAPÀ ¢AzÀ: 18/04/2018 ¢£ÁAPÀÀ ªÀgÉUÉ:
18/04/2018 ªÉüɬÄAzÀ:07:45:00 ªÉüÉAiÀĪÀgÉUÉ:07:50:00
(b) oÁuÉAiÀÄ°è ªÀvÀðªÀiÁ£À ¹éÃPÀj¹zÀ ¢£ÁAPÀ:18/04/2018 09:15:00 §gÀªÀtÂUÉAiÀÄ°è / ºÉýPÉ : Written
(c) ¦AiÀiÁðzÀÄzÁgÀ / ¨ÁwäÃzÁgÀ vÀqÀªÁV ªÀgÀ¢ ªÀiÁrzÀPÉÌ PÁgÀtUÀ¼ÀÄ:
- -
(d) d£ÀgÀ¯ï qÉÊj G¯ÉèÃR ¸ÀASÉå ªÀÄvÀÄÛ ¸ÀªÀÄAiÀÄ: 3, 09:15:00 4(a) PÀÈvÀå £ÀqÉzÀ ¸ÀܼÀ: J C Circle, Hosakote Town, Bengaluru Dist, Karnataka.
(b) ¥ÉÆðøï oÁuɬÄAzÀ EgÀĪÀ ¢PÀÄÌ ªÀÄvÀÄÛ zÀÆgÀ: Towards East 1 km
(c) UÁæªÀÄ: HOSAKOTE TOWN UÀ¹Û£À ºÉ¸ÀgÀÄ: BEAT NO.1
(d) ¸ÀܼÀªÀÅ ¨ÉÃgÉ ¥Éưøï oÁuÉ ªÁå¦ÛUÉ §gÀĪÀAvÀºÀzÀÄÝ DzÀgÉ D ¥Éưøï oÁuÉAiÀÄ
ºÉ¸ÀgÀÄ: f¯Éè:
5. ¦AiÀiÁðzÀÄzÁgÀ / ¨ÁwäÃzÁgÀ:
(a) ºÉ¸ÀgÀÄ : Nisar Ahmed vÀAzÉ / UÀAqÀ£À ºÉ¸ÀgÄÀ : Nazeer
Ahmed
(emphasis added)
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NC: 2023:KHC-D:12462
WP No. 105409 of 2023
C/W WP No. 105374 of 2023
The allegation at clause 10 in the second FIR reads as follows:
"10. ¢£ÁAPÀ 18.04.2018 gÀAzÀÄ ¨É¼ÀUÉÎ 9.15 UÀAmÉUÉ ¤¸Ágï CºÀªÀÄäzï ©£ï £ÀfÃgï CºÀäzï, 55 ªÀµÀð, ¥ËgÁAiÀÄÄPÀÛgÀÄ, ºÉƸÀPÉÆÃmÉ £ÀUÀgÀ ¸À¨sÉ ºÁUÀÆ ¥Éè¬ÄAUï ¸Á̪Àqï vÀAqÀzÀ ªÀÄÄRå¸ÀÜgÀÄ, ºÉƸÀPÉÆÃmÉ «zsÁ£À ¸À¨Ás PÉëÃvÀæ ¸ÀASÉå 178, ªÉƨÉÊ¯ï £ÀA.9481342786 gÀªÀgÀÄ oÁuÉUÉ ºÁdgÁV ¤ÃrzÀ zÀÆj£À ¸ÁgÁA±ÀªÉ£ÉAzÀgÉ ºÉƸÀPÉÆÃmÉ «zsÁ£À ¸À¨Ás PÉëÃvÀæ ¸ÀASÉå 178 UÉ ¥Éè¬ÄAUï ¸Á̪Àqï vÀAqÀzÀ ªÀÄÄRå¸ÀÜgÁV zÀÄ£ÁªÀuÁ¢üPÁjAiÀĪÀgÀÄ £ÉêÀÄPÀ ªÀiÁrzÀÄÝ CzÀgÀAvÉ £Á£ÀÄ ¢£ÁAPÀ 18.04.2018 gÀAzÀÄ ¨É¼ÀUÉÎ ºÉƸÀPÉÆÃmÉ mË£ï£À°è gËAqïì£À°èzÁÝUÀ eÉ.¹.¸ÀPÀð°£À°è ¢£ÁAPÀ 18.04.2018 gÀAzÀÄ ©eɦ ¥ÀPÀëzÀ gÁ¶ÖçÃAiÀÄ CzÀåPÀëgÁzÀ ²æà C«Ävï µÁ gÀªÀgÀÄ ºÉƸÀPÉÆÃmÉUÉ §gÀĪÀ PÁAiÀÄðPÀæªÀÄzÀ CAUÀªÁV ©eɦ ¥ÀPÀëzÀ §AnAUïìUÀ¼À£ÀÄß ºÁQzÀÄÝ, §AnAUïìUÀ¼À£ÀÄß ºÁPÀ®Ä C£ÀĪÀÄw ¥ÀqÉ¢gÀĪÀÅ¢®è, C£À¢üPÀÈvÀªÁV ºÁQzÀÝ §AnAUïìUÀ¼À£ÀÄß vÉgÀªÀÅUÉƽ¸ÀĪÀAvÉ ºÉƸÀPÉÆÃmÉ £ÀUÀgÀ ¸À¨sÉ DgÉÆÃUÀå ¤jÃPÀëPÀgÁzÀ £ÀĸÀgÀvï ¨Á£ÀÄ gÀªÀjUÉ w½¹zÀÄÝ CzÀgÀAvÉ CªÀgÀÄ ¹§âA¢UÀ¼ÁzÀ «.£ÁUÀgÁd, ZÀ£ÀßzÉñÀªÀ, gÀªÉÄñï, C±ÉÆÃPï, ºÁUÀÆ E¤ßvÀgÉ ¥ËgÀPÁ«ÄðPÀgÉÆA¢UÉ EzÉ ¢£À ¨É¼ÀUÉÎ ¸ÀĪÀiÁgÀÄ 6.45 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è eÉ.¹.¸ÀPÀð°UÉ ºÉÆÃV §AnAPïìUÀ¼À£ÀÄß vÉgÀªÀÅUÉƽ¸ÀÄwÛzÁÝUÀ C°èUÉ §AzÀ ©eɦ ¥ÀPÀëzÀ ªÀÄÄRAqÀgÁzÀ ©.«.¨ÉÊgÉÃUËqÀ, PÉñÀªÀªÀÄÆwð, ¸ÀħâgÁdÄ ºÁUÀÆ E¤ßvÀgÀgÀÄ CqÀØ¥Àr¹gÀÄvÁÛgÉ vÉgÀªÀÅUÉƽ¸À®Ä ©qÀÄwÛ®è JAzÀÄ £ÀĸÀgÀvï ¨Á£ÀÄ gÀªÀgÀÄ £À£ÀUÉ ¥sÉÆãÀ ªÀiÁr w½¹zÀÝgÀÄ, £Á£ÀÄ EzÉà ¢£À ¨É½UÉÎ 7:45 UÀAmÉUÉ f ¹ ¸ÀPÀð®UÉ ºÉÆÃV £ÀUÀgÀ¸À¨sÉ ¹§âA¢AiÉÆA¢UÉ C£À¢üPÀÈvÀªÁV ºÁQzÀÝ §AnAPÀìUÀ¼À£ÀÄß vÉgɪÀÅUÉƽ¸À®Ä ºÉÆÃzÁUÀ ©eɦ ¥ÀPÀëzÀ ªÀÄÄRAqÀgÀÄUÀ¼ÀÄ DzÀ ©.«.¨ÉÊgÉÃUËqÀ, ¸ÀħâgÁdÄ, PÉñÀªÀªÀÄÆwð ºÁUÀÆ E¤ßvÀgÀÄ ¸ÉÃj ¨Á¬ÄUÉ §AzÀAvÉ CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀÄ ¨ÉÊgÉÃUËqÀgÀ eÉÆvÉAiÀÄ°èzÀÝ PÀªÀÄäªÁj¥ÉÃmÉ ªÁ¹ C±ÉÆÃPÀ gÀªÀgÀÄ PÉÊUÀ½AzÀ £À£ÀUÉ ºÉÆqÉzÀÄ ºÀ¯Éè ªÀiÁrgÀÄvÁÛgÉ, ZÀÄ£ÁªÀuÁ PÀvÀðªÀåPÉÌ ºÁUÀÆ ¸ÀPÁðj PÀvÀðªÀåPÉÌ CrØ¥Àr¹gÀĪÀ ªÉÄîÌAqÀªÀgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ dgÀÄV¸À®Ä PÉÆÃgÀÄvÉÛÃ£É JAzÀÄ EvÁå¢AiÀiÁV ¤ÃrzÀ zÀÆj£À ªÉÄÃgÉUÉ."
If both the FIR in Crime No.223 of 2018 and FIR in Crime No.224 of 2018 are read in juxtaposition, what would unmistakably emerge is that, both the complaints are by the very same complainant, which pertain to the same incident and same time and date of incident. Once having registered a complaint on a particular premise of an incident, it was not open to the complainant to have registered another complaint on the very same incident regarding what happened during the very same period. The complainant cannot be permitted to improve on the earlier complaint and as an afterthought bring in other offences in the second complaint becoming a second FIR on sameness. It would amount to permitting multiple FIRs' on the very same - incident, time of the incident, date of the incident and by the very same complainant. It would be hit by
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 the doctrine of sameness as held by the Apex Court in the afore-extracted judgments. Therefore, insofar as Crime No.224 of 2018 is concerned, the criminal trial cannot be permitted to continue as it would fall foul of the cardinal principle of violation of fundamental rights of a citizen and the law laid down by the Apex Court, as aforesaid.
13. A counter complaint is always permissible on the same incident as there can be complaints and two FIRs', if it is a case of complaint and counter complaint or a case of consequential complaint. These are not the facts in the case at hand. Therefore, without a shadow of doubt it would hit by 'doctrine of sameness'.
14. Insofar as judgments relied on by the learned counsel appearing for the respondents are concerned, there should be no qualm about the enunciation of law in the judgments relied on in the case of MANOJ KUMAR or RAM LAL NARANG, as they were either a case of counter complaint or a case of consequential complaint. The case which the learned counsel relied on with particular reference in the case of MANOJ KUMAR (supra), the very fact that the case was for a different purpose altogether can be gathered in paras 1 and 2 of the said judgment, which read as follows:
"1. The present matter is placed before us by virtue of referral order dated 22-05- 2014 wherein the following question was placed for reference before us that, "whether the second FIR and the investigation in pursuance of further information thereof should be straightaway quashed or should it require a scrutiny during trial of the permissible matter of prejudice, and truthfulness of the evidence collected on the basis of second FIR".
2. But it is to be noted that, during the course of arguments the counsel from both sides admitted that, no second FIR was
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 registered in the present case. Although the reference was made to us, to adjudicate the above question of law, basing on the submission we can conclude that the issue of second FIR does not arise in the present matter. Therefore, we are proceeding to adjudicate the matter on merits."
(emphasis supplied) The Apex Court at the 2nd paragraph clearly holds that there was no second FIR registered. Therefore, the judgment is clearly inapplicable to the facts of the case at hand. The remaining judgments relied on by the learned counsel for the 1st respondent are the ones that are relied on by the learned senior counsel appearing for the petitioner. Therefore, the judgments relied on by the learned counsel for the petitioner are the ones that are applicable to the facts of the case at hand and not the ones that are relied on by the learned counsel appearing for the first respondent."
The afore-quoted judgment was following several judgments of the Apex Court. The issue in the case at hand would be covered on all its fours to the judgment in the case of BYRE GOWDA (supra). In the light of it being covered by the aforesaid judgment, the crime in Crime No.231 of 2023, the 2nd in line on the same set of facts needs to be obliterated.
WRIT PETITION NO.105409 OF 2023:
13. This criminal petition is preferred calling in question registration of crime in Crime No.230 of 2023. Though several
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 submissions on merits of the matter have been advanced by the learned counsel appearing for the petitioners, he would strenuously contend that there is no substance in the registration of crime. The crime is registered on 28-08-2023 and the writ petition is preferred four days thereafter on 01-09-2023. Therefore, challenging the crime by the petitioners before this Court in Crime No.230 of 2023 is even before the ink on the complaint could dry. The crime is registered for cognizable offence. The incident is said to have happened on 28-08-2023 which requires investigation in the least. Therefore, the challenge to Crime No.230 of 2023 cannot be entertained at this juncture and the writ petition deserves to be rejected. Accordingly, reserving liberty to the petitioners to approach the appropriate forum at the appropriate time and since Crime No.231 of 2023 is obliterated, the statements recorded in Crime No.231 of 2023 may be used as statements under Section 161 of the Cr.P.C. in Crime No.230 of 2023.
14. The learned counsel for the petitioners at this juncture would seek indulgence at the hands of this Court at least to protect the petitioners from taking any precipitate
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023 action against them or their arrest till they seek protection from the hands of the competent Court.
15. The learned counsel for the complainant and the learned High Court Government Pleader have no objection to accord such protection till the petitioners seek protection before the concerned Court. Therefore, the order not to precipitate that was subsisting all along the proceedings shall continue to operate for a period of eight weeks from the date of receipt of a copy of this order or till the protection is sought by the petitioners before the competent Court, whichever is earlier.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition No.105374 of 2023 is allowed.
(ii) The proceedings in Crime No.231 of 2023 stands quashed.
(iii) Writ Petition No.105409 of 2023 is rejected reserving liberty to the petitioners to avail all such remedies as are available in law before the appropriate forum at the appropriate time.
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NC: 2023:KHC-D:12462 WP No. 105409 of 2023 C/W WP No. 105374 of 2023
(iv) The protection subsisting as observed hereinabove shall continue for a period of eight weeks from the date of receipt of a copy of this order or till the protection is sought by the petitioners before the competent Court, whichever is earlier.
(v) The statements recorded in Crime No.231 of 2023 may be availed as statements under Section 161 of the Cr.P.C. in Crime No.230 of 2023.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 64 CT:SS