Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 2 September, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010172342022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./881/2022
MAHAMMAD ALI AND 5 ORS
S/O ALEP KHAN
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA,
DIST. BARPETA, ASSAM
PIN-781314.
2: SAHIDUL ALI @ SAHIDUR @ JASIM
S/O MAHAMMAD ALI
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-781314.
3: MAHIDUL HOQUE @ MAHIDUL ALI
S/O MAHAMMAD ALI
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-781314.
4: JAYMAT ALI @ JULMAT ALI
S/O MAIN UDDIN
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
Page No.# 2/7
DIST. BARPETA
ASSAM
PIN-781314.
5: RAHIM ALI
S/O LATE KADER ALI
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-781314.
6: SONA MIYA
S/O LATE KADER ALI
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-781314
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SALEHA KHATUN
W/O BABUL ALI (AHMED)
R/O VILL- DHANBANDHA
P.O. SONAKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-78131
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
Page No.# 3/7
ORDER
Date : 02.09.2022 Heard Mr. S.C. Biswas, learned counsel for the petitioners and Mr. Bhaskar Sarma, learned APP appearing for the State.
1. By filing this criminal petition under Section 482 CrPC, the petitioners have prayed for quashing of proceedings initiated vide Barpeta PS Case No. 497/2019 under Section 120(B)/147/149/457/325/324/326/307 IPC, which was registered pursuant to an FIR dated 09.03.2019 by the respondent no.2.
2. The learned counsel for the petitioners has submitted that in the impugned FIR dated 09.03.2019, by naming 12 (twelve) persons as accused, the respondent no. 2 had stated that on 03.03.2019 at about 8.00 PM while her husband was inside the house, the accused persons i.e. the petitioners armed with sharp weapon, lathi, cricket bats, etc. had illegally trespassed in their house and attacked her husband and he had taken shelter in the house of adjacent neighbour, but the accused persons broke into his house and assaulted him. It was further stated that her husband had become unconscious and then the accused persons had dragged the unconscious body of her husband near the paddy field and again assaulted him and broke both his hands, stabbed a knife on his chest and his fingers were slashed and two mobile phones of her husband were also snatched away and accordingly, her husband was admitted in the FAAMCH in critical condition. The delay was explained by stating that as she was busy during the treatment, there was a delay in lodging the FIR. Accordingly, Barpeta PS Case No. 497/2019 was registered.
3. It is further submitted that in respect of the same incident, on Page No.# 4/7 04.03.2019 another FIR was lodged by one Abu Tayeb, who is the person in whose house the husband of the respondent no.2 had taken shelter as per her FIR. He had also stated that on 03.03.2019 at about 8.00 PM, six accused persons named therein being six of petitioners herein had chased the same injured person and brought him in his house and assaulted him and thereafter, dumped him in a paddy field and it is further stated that the accused persons had vandalized his household articles and broke his showcase and looted Rs.80,000/-.
4. Accordingly, it is submitted that two prosecution of the same incident is not maintainable and the same runs counter to the principle of double jeopardy. To supplement his stand that two FIRs for the same incident is not maintainable or permissible, the learned counsel for the petitioners has relied on the case of Surender Kaushik and Anr. Vs. State of U.P. and Anr., (2013) 5 SCC
148.
5. The learned Addl. P.P. has made his submission in the matter.
6. In the present case in hand, the first FIR dated 04.03.2019, which was registered as Barpeta PS Case No. 445/2019 under Section 447/448/325/382 IPC was lodged by one Abu Tayeb, who had stated that the victim was brought into his house and assaulted and thereafter, his body was dumped in a paddy field. In addition to the said incident, the informant of the FIR dated 04.03.2019 had stated that the accused persons had vandalized his household articles and broke his showcase and looted Rs.80,000/-. The second FIR dated 09.03.2019 was lodged by the wife of the victim where apart from the statement made by the informant in the first FIR dated 04.03.2022, she has further stated that both the hands of her husband was broken and he was stabbed by a knife in his Page No.# 5/7 chest and fingers were slashed and his husband's two mobile phones were also snatched away.
7. On a perusal of both the FIR, although the primary incident remains the same, but the interest of both the informants stand on a different footing. The author of FIR dated 04.03.2019, namely, Abu Tayeb has an interest in the matter as his house was also vandalized in the process of assaulting the victim and money from his house was also stolen away. In the second FIR, which was resulted in Barpeta PS Case No. 497/2019, the interest of the informant, namely, Saleha Khatun is to highlight the various injury suffered by her husband.
8. Under such circumstances, when the interest of the two informants are different, the Court is of the considered opinion that if the subsequent FIR is quashed, it would definitely affect the interest of the informant of the FIR dated 09.03.2022. The decision of the Supreme Court of India in the case of Surender Kaushik (supra), appears to support the view of this Court because in the said judgment, the Supreme Court of India has observed as follows:
"25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it Page No.# 6/7 noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
9. In light of the ratio laid down in the case of Surender Kaushik (supra), in the considered opinion of this Court, the interest of the two informants are at Page No.# 7/7 variance. Hence, the principle of sameness would not be attracted in this case.
10. Be that as it may, in view of the provisions of Section 219 of the CrPC, the Court is inclined to observe that in the event the petitioners are so advised, they would be at liberty to move the learned trial Court for being charged and tried in one trial for the two offences, which are registered as Barpeta PS Case No. 445/2019 under Section 447/ 448/ 325/ 427/ 382 IPC as well as Barpeta PS Case No. 497/2019 under Section 120(B)/ 147/ 149/ 457/ 325/ 324/ 326/307. In the event the petitioners are advised to do so, and in case the petitioners files such an application, the learned Court below where both the proceedings are pending, shall consider the prayer and pass appropriate orders thereon.
11. In view of the order passed today, the Court finds no point to keep the matter pending.
12. With the aforesaid observation, this criminal petition stands disposed of at the motion stage without issuance of notice on the respondents.
JUDGE Comparing Assistant