Jammu & Kashmir High Court
Neelam Rani And Ors. vs State And Ors. on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A No. 614/2015 & MP No.01/2015
Date of decision:28.10.2017
Neelam Rani & ors. Vs. State and Ors.
Coram:
Hon'ble Mr Justice Sanjay Kumar Gupta, Judge
Appearance:
For the petitioner(s): Mr. P. S. Pawar, Advocate
For the respondent(s): Mr. S. S. Nanda, Sr. AAG for respondent Nos.1 to 3.
Mr. Kushal Perihar , Advocate for respondent no 4 i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners invoke inherent jurisdiction of this Court under Section 561-A Cr.P.C seeking quashment FIR No. 69/2015 dated 25.04.2015 registered by respondent No.3-SHO Police Station, Akhnoor, Jammu under Sections 451/427/506/325/120-B RPC.
2. In the petition, it is stated that on 30.03.2015 at about 9.30 am, respondent No.4 namely Raghubir Singh S/o Munshi Singh, his wife Raj Devi, son Narotam Singh alias Babloo and daughter Neesha Devi committed a murderous assault over petitioner No.1 when she was going from her courtyard of the house to the kitchen, in the said assault by respondent No.4 along with his other family members, petitioner No.1 sustained serious injuries and head injuries inflicted by them with sharp edge weapons. The said assault was committed because of their old enmity with the family of the petitioners. Petitioner No.1 was hospitalized but because of the seriousness of the nature of injuries (head injuries), petitioner No.1 was referred to Govt. Medical College, Jammu on the 561-A Cr.P.C. No.614/2015 Page 1 of 11 2 same day i.e 30.03.2015. The statement of petitioner No.1 was recorded on 03.04.2015 and in this regard an FIR No.54/2015 dated 03.04.2015 came to be registered against respondent No.4 under Sections 452/506/326/120-B RPC. It is further stated that the investigation was in process but in order to bring the petitioners on the compromise and also in counter blast to the said FIR, respondent No.3 on 25.04.21015 got registered another FIR being FIR No.69/2015 against the petitioners under Sections 452/427/506/326/120-B RPC.
3. The petitioners are aggrieved against FIR No.69/2015 dated 25.04.2015 and challenge the same on following amongst other grounds:
a. The impugned FIR No. 69/2015 registered by the respondent No. 3 at the instance of respondent No. 4 is a sheer abuse of process of law and court hence required to be quashed.
b. The impugned FIR is nothing but has been registered by the respondent No. 3 at the instance of respondent No. 4 to wreck vengeance on the petitioners, as the petitioners have failed civil suit against the mother-in-law of respondent No. 4 and the respondent No. 4 is contesting the said suit being attorney holder of Soma Devi pending disposal in the Court of Sub Judge, Jammu in which a stay order is operating against the respondent No. 4. The impugned FIR hence is required to be quashed as has been actuated with malafide.
c. The perusal of the impugned FIR itself reveals that the occurrence is said to be of 30.03.2015 with regard to which there is already an FIR registered against the respondent No. 4 and investigation is in process and with respect to the same alleged occurrence, the impugned FIR has been lodged on 25.04.2015 by respondent No. 4 involving the petitioners on the basis of false and frivolous allegations.
d. It is a well settled law that if the FIR is registered then it is followed by investigation and the purpose of investigation is to bring out the truth with regard to the occurrence and to bring the real culprit to justice but here is case where the respondent No. 4 has got registered another FIR with respect to the same alleged occurrence which is against law and criminal justice system as there cannot be two FIR's with respect to the same offence. Moreover the impugned FIR has been registered after more than 26 days of the alleged occurrence at the instance of respondent No. 4. e. As per the statement of the injured in FIR No. 54/2015 i.e. petitioner No. 1 herein she was alone at home when the respondent No. 4 along with his family members entered into her house and gave blows over her head with a sharp edged weapon and also gave severe beating by fists and blows but in the subsequent FIR No. 69/2015 impugned herein, the respondent No. 4 after about 22 days of the registration of FIR No. 54/2015 registered against him got prepared an application through legal practitioner and lodged a false and frivolous FIR against the petitioners with respect to the alleged 561-A Cr.P.C. No.614/2015 Page 2 of 11 3 occurrence of 25 days old with a purpose to counter the FIR No. 54/2015 i.e. respondent No. 4. Hence the story of respondent No. 4 is full of lies in the said impugned FIR actuated upon malafide hence the impugned FIR requires to be quashed.
f. The respondent No. 4 in the impugned FIR has admitted that there is civil litigation pending in the court of Sub Judge, Jammu i.e. the father of the petitioner No. 2 who had filed a civil suit and after his death petitioners have been brought on record and the Hon'ble Court has passed the order of status quo in the year 2007 and in 2014 also more particularly on 21.05.2014. The order was implemented through SHO Police Station, Akhnoor.
g. The impugned FIR in the aforesaid facts and circumstances is nothing but sheer abuse of process of court and law, therefore, in order to secure the ends of justice and to prevent the abuse of process of court/law, the impugned FIR is required to b quashed.
h. Ever since the registration of the impugned FIR No. 69/2015, the respondent No. 3 as well as respondent No. 4 are pressing upon the petitioners to withdraw the FIR No. 54/2015 registered against the respondent No. 4 and his family members, hence the impugned FIR No. 69/2015 is nothing but is a devise which they are using as a shiled to protect themselves from the criminal justice system and with respect to the offences committed by them.
4. This Court vide order dated 22.12.2015, issued notice to other side and stayed the proceedings in FIR No.69/2015.
5. In response to the petition, learned State counsel representing the State has filed the status report in case FIR Nos.54/2015 u/s 452/323/34 RPC and FIR No. 69/2015 u/s 452/427/506/325/120-B RPC.
6. It is stated that on 03.04.2015 HC Jangi Ram No. 154/J of PS Akhnoor was deputed to SDH Akhnoor for recording the statement of victim Neelam Rani W/o Sikander Singh caste Rajput R/O Bardal Tehsil Akhnoor. In her statement Neelam Rani stated that she is a permanent resident of village Bardal Kalan Tehsil Akhnoor. They have some land dispute with Raghubir Singh S/o Munshi Singh, Raj Devi W/o Raghubir Singh, Narotam Singh @ Billu S/o Raghubir Singh and Nisha Devi D/o Raghubir Singh, all R/o Bardal Kalan. It is further stated that on 30.03.2015 at about 0900 hrs when she was sitting in the lawn of her house, when she had gone to open the door of her kitchen she heard the sound and saw that the above said persons entered into the house with 561-A Cr.P.C. No.614/2015 Page 3 of 11 4 criminal intention on the basis of previous rivalry and one person namely Narotam Singh attacked on her with sharp edge article and injured her, other persons also attacked on her with kicks and blows causing serious injuries to her. On haring hue and cry some locals reached on spot and when the accused person saw them, they fled away from spot. On the basis of the statement of the victim Neelam Devi, case FIR No. 54/2017 u/s 452/323/34 RPC has been registered and investigation is carried out by HC Jangi Ram No. 154/J. During the course of investigation the Investigation Officer (IO, HC Jangi Ram) visited the place of occurrence and prepared the site plan. The IO recorded the statement of the complainant and witnesses u/s 161-A Cr.P.C. The IO also collected the medical report of the victim and after completing all the legal formalities the challan of the case has been produced in the court of JMIC Akhnoor on 27.08.2015 against 1. Raghubir Singh S/O Munsi Singh 2. Raj Devi W/o Raghubir Singh 3. Narotam Singh @ Billu S/O Raghubir Singh, all R/o Bardal Kalan Tehsil Akhnoor, 4. Nishal Devi D/O Raghubir Singh W/o Mukhtyar Singh R/O Purkhoo, Tehsil and Distt. Jammu. It is further stated that on 25.04.2015 the complainant Raghubir Singh S/o Late Munshi Singh R/O Bardal Kalan submitted an application u/s 156(3) Cr.P.C. for the registration of FIR against Sikander Singh S/o Rashpal Singh, Sachin Singh S/o Sikander Singh, Nitin Pawar S/o Sikander Singh, Neelam Rani W/o Sikhander Singh R/O Bardal Kalan, Tehsil Akhnoor on the basis of which FIR No. 69/2015 registered and the investigation of the case FIR No. 69/2015 u/s 451/323/506/34 RPC has been closed as challan against Sikander Singh S/o Rashpal Singh, Sachin Singh S/o Sikander Singh, Nitin Pawar S/o Sikander Singh, Neelam Rani W/o Sikander Singh R/O Bardal Kalan Tehsil Akhnoor, but the accused person filed a petition u/s 561-A Cr.P.C. for seeking quashment of FIR No.69/2015 before the Hon'ble High Court of J&K, Jammu. The Hon'ble High Court 561-A Cr.P.C. No.614/2015 Page 4 of 11 5 directed not to proceed in FIR No. 69/2015. The respondent (SHO PS Akhnoor) submitted the detailed report and objections before the Hon'ble High Court through Rakesh Khajuria Addl. Advocate General on 25.01.2016 for seeking further directions from the Hon'ble High Court of J&K Jammu.
7. Heard learned counsel for the parties and perused the record in file.
8. Learned counsel for the petitioners in support of his petition has relied upon the judgment of this court passed in 561-A No.58/2017 in case titled Amrik Singh Vs. State, wherein this court quashed the FIR on the ground that it has been lodged after three months and has been lodged as counter blast to charge sheet filed against them.
9. I have given my thoughtful consideration to whole aspects of matter and facts of present case.
10. It is fact that FIR No.54/2015 dated 03.04.2015 came to be registered against respondent No.4 and his family members under Sections 452/506/326/120-B RPC in police station Akhnoor on the statement of one of Petitioner no.1 ( Neelam Rani). In this FIR date of occurrence has been mentioned as 30.3.2015.
On 17.4.2015 on the written complaint filed by Ragubhir Singh (respondent no.4 herein) Munsiff Akhnoor (JMIC) directed the police to investigate the matter in terms of section 156 (3) Cr.P.C. with regard to incident which took place on 30.3.2015 (the date of occurrence in FIR no.54/2015)) stating that on 30.03.2015 on Monday at about 9.30 A.M. accused/petitioners herein forcibly entered into the house of the complainant when the complainant was doing his routine work with son, wife and daughter in law and old aged mother was also sitting in the house and the accused persons in planned manner entered the house and started destructing the already raised plinth and changing the nature of the property in dispute to get forcible possession over 561-A Cr.P.C. No.614/2015 Page 5 of 11 6 the plot and when the complainant and his mother made request to the accused persons and tried to stop the accused person from doing so and requested them for obeying the order of the Hon'ble Court the accused person did not show any mercy to the request of old aged mother of complainant and the accused No. 2 started beating with fists and blows and dragging the mother of complainant out of the plot forcibly, which resulted in injury to the mother of complainant and the complainant tried to stop accused No.2 and other accused Nos.1, 2 & 3 caught the complainant and gave him a severe beating, in the mean time the elder son of complainant namely Narotam Singh who came to save her injured grandmother and tried to took her inside the house was again caught by accused No. 1, 3 and 4 and was hit and injured in his right leg by pelting stones on him and further the accused person even threatened and skipped the complainant for vacating the plot and instead of hue and cry of the wife and daughter in law of the complainant, the accused persons keep on beating the complainant and while dragging the complainant out of the plot and accused No. 2 Nirmala Devi fell down and got injury by herself on her head.
That the applicant then lodged written report to the SHO P/S Akhnoor but the police first took the injured mother and son of the complainant i.e. Smt. Soma Devi and Narotam Singh to the Govt. Hospital, Akhnoor for treatment and the accused person also lodged application against the complainant, the police has not registered the case against the accused, the accused named above who have committed offence under Sections 325/452/427/506/147/120-B of RPC and later on the complainant came to know that the police has registered case against four people.
561-A Cr.P.C. No.614/2015 Page 6 of 11 711. The contentions of petitioners is three folds; firstly that the occurrence/incident is said to be of 30.03.2015 with regard to which petitioners have already lodged an FIR No.54/2015 against respondent No. 4 and his family; the impugned FIR No.69/2015 has been lodged on 25.04.2015 by respondent No. 4 involving the petitioners on the basis of false and frivolous allegations; that law is well settled that for the same occurrence /incident two FIRs cannot be lodged.
12. This arguments is not tenable, because for rival version in respect of same incident two counter FIRs can be lodged.
13. The Hon'ble Supreme Court in case titled, "Bank of Rajasthan Vs. Keshav Bangur and Another" reported in 2007 (5) R.A.J. 541, it has been held that "A. Criminal Procedure Code, Section 154-Two FIRs in respect of same incident-When there are rival versions in respect of the same incident, they would normally take the shape of two different FIRs and the investigation can be carried on under both by the same Investigating Agency."
"15. The above question has now become academic for the following reasons. Firstly, in our order dated 8.3.07 we directed CBI to proceed with investigation into FIR No.138 of 2001 filed in P.S. Alipore, Calcutta. Under the said order we also directed CBI to submit their report under a sealed cover within six weeks. That Report has been placed before us. We have gone through that Report. We do not wish to discuss the contents of the Report at this stage. By the impugned judgment, the Calcutta High Court has directed CBI to take up the investigation of Alipore PS Case No.138/01 and has further directed that in the course of such investigation of the said Case No.138/01 it would be open to CBI to take into consideration the aforestated sixteen FIRs, the period during which the alleged offence were committed and thereafter to decide the course of action to be taken in accordance with law. The learned Sub Divisional Judicial Magistrate was also directed to transmit the record of Alipore PS Case No.138/01 to the Third Special Judge, CBI, Calcutta. We agree with the said direction. The said direction of the Calcutta High Court contained in the impugned judgment read with our order dated 8.3.07 indicates that investigation into FIR No.138/01 as well as into sixteen FIRs have been entrusted to one single agency, namely, CBI. In the circumstances, the question of First FIR has become academic. That question no 561-A Cr.P.C. No.614/2015 Page 7 of 11 8 more survives. Consequently, two civil revision applications filed by Keshav Bangur in the High Court bearing Nos.2545 and 2852 of 2003 will not survive. They stand dismissed as infructuous. Secondly, on 12.7.02 a Closure Report in Final Form was drawn up in connection with FIR No.138/01 inasmuch as CBI had taken up the investigation. The hearing on the Final Report of Closure was concluded before Sub Divisional Judicial Magistrate, Alipore. It was allowed by Sub Divisional Judicial Magistrate. However, it may be clarified that the said Closure was not on merits of the case. The said Closure was only on account of the fact that the investigation stood transferred to CBI. Consequently, now the Alipore Police Station has no role to play. Lastly, in the case of Kari Choudhary v. Most. Sita Devi and others AIR 2002 SC 441 at page 443, this Court has explained the legal position in case of FIRs being filed against the same accused in respect of the same case. This Court has held that when there are rival versions in respect of the same incident, they would normally take the shape of two different FIRs and investigation can be carried on under both by the same investigating agency. That, to set aside the proceedings merely on the ground that the final report has been laid in the first FIR is, to say the least, too technical as the ultimate object of every investigation is to find out whether the offences alleged have been committed and if so who has committed them. Even otherwise, the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under Section 173(2) on a previous occasion. We quote hereinbelow paragraphs 11 and 12 of the said judgment which read as follow:
"11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted by the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court reading the new discovery made by the police during investigation the persons not named in FIR No. 135 are the real culprits. To quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.
12. Even otherwise the investigating agency is not precluded from further investigation in respect of an offence in spite of 561-A Cr.P.C. No.614/2015 Page 8 of 11 9 forwarding a report under Sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173(8) of the Code."
14. In case titled, "Shiv Shankar Singh Vs. State of Bihar and Another", 2011(6) R.A.J.215, it is held by the Hon'ble Supreme Court that:
"A. Criminal Procedure Code, Section 154-Criminal Procedure Code, Section 300-Dacoity and murder case-Two FIRs lodged regarding same incident-Not illegal-Filing another FIR in respect of the same incident having a different version of events is permissible 1980 Cr.L.J 482: 2010(4) RCR (Crl.) 311: 2010(5) Recent Apex Judgment (RAJ) 267, relied."
"6. We do not find any force in the submission made on behalf of the respondents that as in respect of same incident i.e. dacoity and murder of Gopal Singh, the appellant himself alongwith others is facing criminal trial, proceedings cannot be initiated against the respondent No.1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791; Sudhir & Ors., v. State of M.P., AIR 2001 SC 826; T.T. Antony v. State of Kerala & Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash & Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).
7. Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty & Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Cr.P.C. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in- Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained. "561-A Cr.P.C. No.614/2015 Page 9 of 11 10
15. In the case titled, "Surender Kaushik and ors. Vs. State of Uttar Pradesh and Ors.", 2013 (3) R.A.J. 95, it is held by the Hon'ble Supreme Court that:
"A. Criminal Procedure Code, 1973, Section 154, Lodgment of two FIRs-Rival Versions in respect of the same incident taking different shapes-In that event, lodgment of two FIRs is permissible-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-Held, 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."
"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 (supra), 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."
16. Second argument of counsel for petitioners is that there is delay in lodging FIR No.69/2015, because alleged occurrence is of 30.03.2015 and FIR has been lodged on 25/4/2015 after 25 days of occurrence. I have considered these aspects of matter. In written complaint made before Magistrate, it has been specifically mentioned that complainant went to police for lodging FIR, but police did not lodge the same under the influence of accused. It has also been stated that they approached Dy.S.P concerned, who directed SHO to lodge FIR but even then SHO did not lodge FIR. So I am of the view, this ground is also not tenable.
561-A Cr.P.C. No.614/2015 Page 10 of 11 1117. The citation produced (561-A No.58/2017) in case titled Amrik Singh Vs. State decided on 30.5.2017, is not applicable, because in that case there was a delay of more than three months.
18. Third argument is that impugned FIR is nothing but has been registered by respondent No.3 at the instance of respondent No.4 to wreck vengeance on the petitioners, as the petitioners have filed civil suit against the mother-in-law of respondent No. 4 and respondent No. 4 is contesting the said suit being attorney holder of Soma Devi pending disposal in the Court of Sub Judge, Jammu in which a stay order is operating against respondent No. 4.
19. I have considered this aspect of matter. Pendency of civil litigation between parties always considered double edged weapons, because some time it may amounts to false implication in criminal cases and sometimes it may become cause of criminal act. In present case, the civil suit is pertaining to year 2007 as per photocopy of order dated 26.7.2007 passed by CJM (Sub Judge, Jammu); the present counter FIRs are pertaining to 2015, so concept to wreck vengeance, can be considered for both parties, because both parties have lodged FIR against each other.
20. In view of above, I don't find any substantial grounds to quash the FIR FIR No. 69/2015 dated 25.04.2015 registered by respondent No. 3-SHO Police Station, Akhnoor, Jammu under Sections 451/427/506/325/120-B RPC against the petitioners. This petition is dismissed. Interim stay, if any, is vacated.
( Sanjay Kumar Gupta ) Judge Jammu 28.10.2017 Narinder 561-A Cr.P.C. No.614/2015 Page 11 of 11