Court No. - 49
Case :- APPLICATION U/S 482 No. - 35536 of 2016
Applicant :- Kamla Yadav And 4 Others
Opposite Party :- State Of U.P.And Another
Counsel for Applicant :- Pushkar Srivastava,Akhilesh Kumar,Shiv Nath Singh
Counsel for Opposite Party :- G.A.,Vimla Prasad
Hon'ble Vivek Agarwal,J.
1. Heard Sri Vipin Kumar, learned counsel for the applicants, Sri Vikas Goswami, learned AGA for the State and Sri Vimla Prasad, learned counsel for the private respondents.
2. This Application U/S 482 Cr.P.C. has been filed by the applicants seeking quashing of the proceedings of Criminal Case No.1638 of 2016 (State Vs. Kamla Yadav and others) arising out of Case Crime No.45 of 2016, under Sections 147, 504, 506, 323, 325 IPC and Section 3(1)(10) of SC/ST Act at Police Station-Naugarh, District-Chandauli pending in the court of Judicial Magistrate, Chakiya, District-Chandauli on the ground that two FIRs could not have been lodged against the settled principle of law as laid down in case of T.T. Antony Vs. State of Kerala and others; AIR 2001 SC 2637 as well as decision in case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and another; (2013) 6 SCC 348.
3. Sri Vikas Goswami, learned AGA in his turn submits that it is not a case of two FIRs, or two FIRs by the same persons for the same incident, but two FIRs respectively lodged by two different persons who were victims of the same offence, as a result of which, one FIR was lodged by Dangar Yadav registering Case Crime No.0043 of 2016, Police Station- Naugarh, District-Chandauli, under Sections 323, 504, 506, 147 IPC and Section 3(1)(10) of SC/ST Act. Subsequently, Case Crime No.0045 of 2016 was registered at same police station by another victim/rival party, namely, Bachau Harijan. It is further submitted that as per the provisions contained in Section 220 Cr.P.C. only one trial will be carried out and, therefore, applicant has no reason to express any apprehension in the matter.
4. Perusing the judgments cited and law laid down in case of T.T. Antony (supra) is to the effect that there cannot be registration of a second FIR and no fresh investigation can be carried out 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 underway 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 Cr.P.C. or under Article 226/227 of the Constitution.
5. On the other hand, learned counsel for private respondent submits that in case of Ram Lal Narang and others Vs. State (Delhi Administration); (1979) 2 SCC 322, it is held that there can be a second FIR in respect of the same subject matter, but there cannot be multiple investigations and trials for which purpose, it is held that 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 as has been held in case of T.T. Antony (supra).
6. Similarly, learned counsel for respondent has also placed reliance on the judgment of Amitbhai Anilchandra Shah (supra) to demonstrate that there complainant was same. It is submitted that law has been clearly laid down in case of C. Muniappan and others Vs. State of Tamil Nadu; (2010) 9 SCC 567 that "merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge-sheet could not be filed". It is submitted that there is no illegality in the second FIR.
7. However, the fact of the matter is and as explained in case of C. Muniappan and others (supra) that court has to see the consequence test i.e. "if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR. In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan as well as in Chirra Shiraj, apply with full force since according to the CBI itself it is the case where:-
(i) The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter.
(ii) The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eye witness to the abduction and consequent murders of Sohrabuddin and Kausarbi; and
(iii) Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter.
In view of the factual situation as projected by the CBI itself, the ratio laid down by this Court in C. Muniappan, viz. merely because two separate complaints had been lodged and did not mean that they could not be clubbed together and one charge-sheet could not be filed." However, law laid down in case of T.T. Antony Vs. State of Kerala and others (supra) is crystal clear and provides that a second FIR based on the same facts is not permissible, though the police has right to conduct further investigation and submit report in respect of the offences disclosed in second FIR.
8. In case of Niranjan Sharma Vs. State of Jharkhand and others; 2006 Cr.L.J. 301, it is held that second FIR would be quashed on petition under Section 482 Cr.P.C. In case of Rajeev Kumar Singh Vs. State of U.P. and another; 2005 All.L.J. 3677 (Alld.), it is held that there cannot be two FIRs against the same 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 by the same investigating agency.
9. A perusal of the facts reveal that second FIR was lodged by Bachau Harijan on the same facts and, therefore, when law laid down in case of T.T. Antony (supra) is taken into consideration, then the second FIR registering Case Crime No.0045 of 2016, Police Station-Naugarh, District-Chandauli cannot be sustained and is liable to be quashed along with all consequential proceedings. However, this will not affect the right of the police to investigate the matter in pursuance of the registration of FIR registering Case Crime No.0043 of 2016, Police Station- Naugarh, District-Chandauli. Accordingly, Application is disposed off.
Order Date :- 16.8.2021 Ashutosh