Allahabad High Court
Naveen Tiwari vs State Of U.P. Thru. Its Prin. Secy. Civil ... on 29 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:26322 Court No. - 27 Case :- APPLICATION U/S 482 No. - 2942 of 2024 Applicant :- Naveen Tiwari Opposite Party :- State Of U.P. Thru. Its Prin. Secy. Civil Secrtt. Home, Lko. And Another Counsel for Applicant :- Bal Keshwar Srivastava,Vivek Tiwari Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi J.
1. Heard Sri Bal Keshwar Srivastava, the learned counsel for the applicant, Sri Anant Pratap Singh, the learned A.G.A. and Sri Piyush Srivastava, Advocate who has put in appearance on behalf of the opposite party no.2 and filed his vakalatnama, which is taken on record.
2. By means of the instant application filed under Section 482 Cr.P.C. the applicant has sought quashing of the charge sheet dated 02-09-2023 submitted in pursuance of F.I.R. No. 341 of 2023 lodged in Police Station Vibhuti Khand, Lucknow for offences under Sections 427, 323, 504, 506 I.P.C., the cognizance and summoning order dated 17.11.2023 along with entire proceedings of Case No.124807 of 2023, pending in the Court of learned Additional Chief Judicial Magistrate-II, Lucknow.
3. In the F.I.R. lodged on 03.07.2023 at about 14.39 hours the opposite party no.2 has alleged that when he had gone to the State Consumer Dispute Redressal Commission to meet his counsel in connection with his case at about 13.13 hours on 28.06.2023, he saw that the applicant and 7-8 unknown persons accompanying him were beating the complainant's advocate Sri Prem Shankar Pandey. The complainant had intervened in the matter. Being annoyed by the intervention of the complainant, the applicant, accompanied by some other unknown persons caught hold of the complainant while he was going towards his house and asked whether he was an advocate. When the complainant answered in negative the applicant took out the complainant's mobile phone from his shirt's pocket and damaged it by throwing it on the ground, hurled abuses at him and while exhorting his companions, he started hitting the complainant and his vehicle with kicks and fists causing injuries to the complainant, due to which he started bleeding from his nose. The F.I.R. further alleged that the applicant damaged the safety stand and right side indicator of his scooter and threatened him.
4. The complainant supported the F.I.R. version by his statement recorded under Section 161 Cr.P.C. However, he declined technical inspection of his scooter on the pretext that he uses the scooter for his day to day works and unavailability of the scooter will cause hardship to him.
5. The complainant was medically examined in the Community Health Centre, Chinhat, Lucknow at 05.15 p.m. on 28.06.2023 and the injury form mentions 'epistaxis active bleeding present' and he was referred to Civil Hospital for management of epistaxis active bleeding. The complainant consulted a doctor in Dr. Shyama Prasad Mukherjee Civil Hospital on 04.07.2023 at 10.30.20 hours, where he was advised some medicines. In the additional statement of the complainant he stated only the applicant had assaulted him and the other unknown persons had not beaten him.
6. The Investigating Officer recorded statements of some independent witnesses and they also supported the F.I.R. allegations. After investigation a charge sheet was filed on 02.09.2023 against the applicant for commission of offences under Sections 427, 323, 504, 506 I.P.C. The learned trial court took cognizance of the offence on 17.11.2023 and summoned the applicant to face trial for the offences under Sections 427, 323, 504, 506 I.P.C.
7. The submission of the learned counsel for the applicant is that the F.I.R. in question is second F.I.R. lodged regarding the same incident and earlier F.I.R. No.336 of 2023 was lodged by one Satya Prakash Pandey, Advocate, General Secretary of All U.P. Consumer Protection Bar Association in Police Station Vibhuti Khand, Lucknow East (Commissionerate Lucknow) at 16.22 hours on 28.06.2023 in the applicant, three other named persons and 10-15 other unknown persons were made accused, alleging that the accused persons had assaulted the complainant inside the premises of State Consumer Dispute Redressal Commission. It is further stated in the F.I.R. that some persons had videographed the incident and had called police by dialing number 112 but the accused persons had pushed the police persons outside the campus. When the complainant Satya Prakash Pandey was going to lodge an F.I.R. of the incident, the accused persons had beaten him and his brother Prem Prakash Pandey, causing injuries to them. The applicant had also lodged an F.I.R. No.337 of 2023 at 17.23 hours on 28.06.2023 in the same police station against four named persons and 20-25 unknown persons alleging that the accused persons had assaulted several advocates in the campus of State Consumer Dispute Redressal Commission.
8. The learned counsel for the applicant has submitted that the second F.I.R. cannot be lodged in respect of the same incident. He has further submitted that the F.I.R. has been lodged maliciously although the F.I.R. had earlier been lodged on the same incident by an advocate and the subsequent F.I.R. has been lodged by person claiming to be a client of that advocate.
9. The learned counsel for the applicant has placed reliance on a decisions of Hon'ble Supreme Court in the cases of T.T. Antony Vs. State of Kerala and others: 2001 (6) SCC 181 and Upkar Singh Vs. Ved Prakash: (2004) 13 SCC 292.
10. Per contra, the learned A.G.A. appearing on behalf of the State and the learned counsel for the opposite party no.2 have vehemently opposed the application and they have submitted that the allegations levelled in the F.I.R. clearly make out commission of a cognizable offence by the applicant. The F.I.R. allegations are supported by the statement of the complainant and the independent witnesses recorded by the Investigating Officer. After the allegations were fund to be established during investigation, the Investigating Officer has submitted a charge sheet and the learned trial court has rightly taken cognizance of the offence and summoned the applicant to face trial.
11. Regarding the submission of the learned counsel for the applicant that the second F.I.R. cannot be lodged in respect of the same incident, the learned counsel for the opposite party no.2 has submitted that the first F.I.R was lodged regarding an incident that took place inside the State Consumer Dispute Redressal Commission at 13.13 hrs, whereas the second F.I.R. has been lodged in respect of a separate incident that took place outside the premises of State Consumer Dispute Redressal Commission at a different point of time.
12. Regarding the submission of the learned counsel for the applicant that the F.I.R. has been lodged maliciously, the learned counsel for the opposite parties have submitted that this plea would require a detailed scrutiny of facts, which is not permissible at this stage, as has been held by the Hon'ble Supreme Court in the case of C.B.I. v. Aryan Singh, 2023 SCC Online SC 379.
13. In T.T. Antony (Supra) the Hon'ble Supreme Court held that: -
"28. ...the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid...."
14. In Upkar Singh (Supra) the Hon'ble Supreme Court has held that: -
"17. ... 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...."
15. When we examine the facts of the present case in light of the law laid down by the Hon'ble Supreme Court in the above mentioned cases, it appears that first F.I.R. No. 336 of 2023 was lodged by Sri. Satya Prakash Pandey Advocate, General Secretary of All U. P. Consumer Protection Bar Association against the applicant, three other named persons and 10-15 other unknown persons alleging that they had assaulted the complainant Advocate inside the premises of State Consumer Dispute Redressal Commission and had even pushed the police persons, who had come in response to a phone call, outside the campus and thereafter when the complainant Satya Prakash Pandey Advocate was going to lodge an F.I.R. of the incident, the accused persons had beaten him and his brother Prem Prakash Pandey, causing injuries to them.
16. F.I.R. No. 341 of 2023 has been lodged by the opposite party no. 2 alleging that when he had gone to the State Consumer Dispute Redressal Commission to meet his counsel in connection with his case at about 13.13 hours on 28.06.2023, he saw that the applicant and 7-8 unknown persons accompanying him were beating the complainant's advocate Sri Prem Shankar Pandey. The complainant had intervened in the matter. Being annoyed by the intervention of the complainant, the applicant, accompanied by some other unknown persons caught hold of the complainant while he was going towards his house, took out the complainant's mobile phone from his shirt's pocket and damaged it by throwing it on the ground, hurled abuses at him and while exhorting his companions, he had assaulted the complainant causing injuries to him, due to which he started bleeding from his nose.
17. This incident is separate and distinct from the incident that took place inside the State Consumer Dispute Redressal Commission premises. The time and place of the incident are different from the incident that took place inside the State Consumer Dispute Redressal Commission premises. The persons named as accused in the incident are also different in both the F.I.Rs. It does not appear that F.I.R. No. 341 of 2023 has been lodged in respect of the same incident regarding which the F.I.R. No. 336 of 2023 was lodged. Therefore, the proceedings initiated on the basis of F.I.R. No. 341 of 2023 cannot be quashed on the ground that it is the second F.I.R. lodged in respect of the same incident.
18. The learned Counsel for the applicant next submitted that the F.I.R. has been lodged maliciously on the basis of false allegations. Replying to this submission, the learned counsel for the opposite party no. 2 submitted that this Court cannot examine the correctness of the factual allegations by holding a mini trial at this stage. In support of this contention, the learned A.G.A. has relied upon the decision of the Hon'ble Supreme Court in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, wherein it has been held that: -
"11.... Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
19. In Umesh Kumar v. State of A.P., (2013) 10 SCC 591, theHon'ble Supreme Court referred to some precedents and held that: -
"23. The issue of mala fides loses its significance if there is a substance in the allegation made in the complaint moved with malice. In Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288] this Court held as under :
"16. ... It is a well-established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."
24. In Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1] this Court held as under :
"74. The ultimate test, therefore, is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence. Therefore, the plea of mala fides as raised cannot be maintained."
25. In State of A.P. v. Golconda Linga Swamy [(2004) 6 SCC 522] this Court held as under :
"8. ... It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
26. Thus, in view of the above, it becomes evident that in case there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal."
20. As the F.I.R. discloses commission of cognizable offence by the applicant and the F.I.R. allegations have been supported by the statements recorded under Section 161 Cr.P.C. and the medical report of the complainant, prima facie case of commission of a cognizable offence by the applicant and there appears to be no illegality in the submission of the charge sheet by the Investigating Officer and in the impugned order 17.11.2023, taking cognizance and summoning the applicant to face trial.
21. The application lacks merit and the same is accordingly dismissed.
.
(Subhash Vidyarthi J.) Order Date :- 29.03.2024 Ram.