Court No. - 34
Case :- CRIMINAL MISC. WRIT PETITION No. - 26210 of 2018 Petitioner :- Suraj Kushwaha And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mahendra Tripathi Counsel for Respondent :- G.A.,Rajesh Kumar Srivastava,Virendra Kumar Srivastava
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Sri Mahendra Tripathi, learned counsel for petitioners and learned A.G.A. representing respondents 1 and 2 are present.
2. Present writ petition under Article 226 of Constitution has been filed seeking a writ of certiorari quashing impugned first information report dated 01.09.2018 lodged against petitioners and registered as case Crime No. 1010 of 2018 under Sections 363, 366, 376, 506 and 313 IPC, Police Station-Sadar Bazar, District-Agra.
3. Learned counsel for petitioners contends that earlier father of victim lodged an F.I.R. dated 15.06.2018, which was registered as Case Crime No. 0630 of 2018 under Section 366 I.P.C., Police Station-New Agra, District-Agra. Pursuant to aforesaid F.I.R. statement of victim namely Lalita was recorded under Section 164 Cr.P.C. on 25.06.2018 in which she deposed that petitioner-1 had not kidnapped her. She also stated that she is major and will marry with petitioner-1. As such she does not want any action to be taken against petitioner-1.
4. Subsequently, the victim has herself lodged an F.I.R. dated 01.09.2018 against petitioners, which has been registered as case Crime No. 1010 of 2018 under Sections 363, 366, 376, 506 and 313 IPC, Police Station- Sadar Bazar, District-Agra. Thus feeling aggrieved by above mentioned second F.I.R., petitioners have filed present Criminal Misc. Writ Petition.
4. On the aforesaid factual premise, learned counsel for petitioners contends that second F.I.R. in the circumstances is not maintainable. Further more the victim herself has given different statements. In her earlier statement recorded under Section 164 Cr.P.C., she has categorically deposed that allegations in the F.I.R. are ex-facie false .Consequently, the victim cannot take a somersault.
5. Apex Court in the case P.Sreekumar vs The State Of Kerala and other, 2018 (4) SCC 579 has explained the concept of second F.I.R. in respect of one and same incident by same complainant against same accused.
6. In these circumstances, the law laid down by Apex Court in T.T. Antony Vs. State of Kerala (2001) 6 SCC 181 relied by learned counsel for applicants is not applicable in the case in hand.
7. We have gone through the aforesaid judgment very carefully and find nothing therein which would help applicants in the present case. The facts of the case before Supreme Court were that Communist Party of India (Marxist), (hereinafter referred to as "C.P.I. (M)") had a strong hold in Kannur District of State of Kerala. One Mr. M.V.Raghavan separated from C.P.I. (M), and formed a new party i.e. "The Communist Marxist Party" (hereinafter referred to as "C.M.P."). He was elected as Member of Legislative Assembly (hereinafter referred to as "M.L.A.") on the ticket of C.M.P. from Azheekkode Constituency of Kannur District. C.M.P. became a constituent of United Democratic Front (hereinafter referred to as "U.D.F.") which formed Government in power in the State of Kerala during the relevant period. He was a Minister in U.D.F. Government having portfolio of Co-operation and Ports. In January 1993 during his vist to Azhikal (Kannur District), a few country-made bombs were hurled on him. State Government orderded elaborate security arrangements for all his visits to District Kannur. Sri Raghavan made a visit in Kannur District on 25.11.1994, which resulted in disturbance causing death of five persons and injuries to six persons in Police firing, which was purportedly resorted to for protection of Minister and of public and private properties. Further, in lathi charge, more than hundred persons sustained injuries including a few police personnel. Police had opened fire at two places, (i) in the proximity of the Town Hall and, (ii) in the vicinity of police station Kuthuparamba. In respect of incident near Town Hall, Assistant Superintendent of Police of Thalassery registered Crime no. 353/94 at Kuthuparamba Police Station under Sections 143, 147, 148, 332, 353, 324, 307 read with 149 IPC, Section 3(2)(e) of P.D.P.P. Act and Sections 3 and 5 of Explosive Substances Act against eight named, and many other unknown persons, belonging to C.P.I.(M). With regard to incident in vicinity of Police Station, Superintendent of Police Station registered Crime No.354/94 at Police Station Kuthuparamba under Sections 143, 147, 148, 427, 307 read with Section 149 IPC, Section 3(2)(e) of P.D.P.P. Act against unnamed persons of C.P.I.(M). Both these crimes were registered on 22.11.1994. Executive Magistrate in respect of incident, submitted report to District Collector, who informed Commissioner and Secretary to Government regarding police firing at Kuthuparamba. On 26.11.1994, Superintendent of Police also sent report of incident to Director General of Police, Kerala. The incident caused public uproar and required for judicial inquiry, whereupon Kerala Government of U.D.F. appointed Mr. K.Padmanabham Nair, District and Sessions Judge, Thalassary as Commission of Inquiry under Section 3(1) of Commission of Inquiry Act, 1952 (hereinafter referred to as "Act, 1952"). In 1996, Assembly Elections in State of Kerala were held in which there was a change in the Government and U.D.F. lost to L.D.F., as a result whereof C.P.I. (M) formed the Government. On 27.05.1997, Judicial Commission submitted report holding M.V.Raghavan, Former Minister responsible for creating situation of disturbance and also said that Police firing was not justified. Commission's report was accepted by Government and an Additional Chief Secretary to Government of Kerala on 30.06.1997 directed Director General of Police to take follow up legal action.
Thereupon, Director General of Police issued order dated 02.07.1997 to Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a senior officer. On 4.07.1997, Inspector General of Police noted that firing without justification causing death of people amounted to murder and issued direction to concerned Station House Officer to register a case under appropriate sections and forward a copy of FIR. Thereupon Deputy Superintendent of Police, Thalassery registered Crime No.268/97 at Police Station Kuthuparamba under Section 302 IPC, impleading M.V.Raghavan, Former Minister, A.H.Bathery and T.T.Antony as accused 1 to 3. On 29.09.1998, Deputy Inspector General of Police who investigated Crime No.268/97, filed interim report in the Court of Judicial First Class Magistrate, Kuthuparamba implicating 19 police officers including R.A.Chandrasekhar and fourteen constables. At this stage, T.T.Antony, the then Executive Magistrate and R.A.Chandrasekhar, the then Assistant Superintendent of Police filed Writ Petition Nos. 3408 of 1998 and 24401 of 1998 respectively. Third writ petition was filed by fourteen Constables. In all three writ petitions prayer was to quash FIR in Crime No.268 of 1997 and alternatively for directing investigation into the said crime by C.B.I. Learned Single Judge of Kerala High Court disposed of writ petition vide judgment dated 29.11.1999 directing reinvestigation of matter by C.B.I. Thereupon, six appeals were filed; three by the said writ petitioners and three by State of Kerala. A Division Bench of Kerala High Court, vide judgment dated 29.02.2000 confirmed in part order of learned Single Judge quashing FIR in Crime No.268 of 1997 in respect of R.A. Chandrasekhar, Assistant Superintendent of Police but directed a fresh investigation by State Police headed by one of the three senior officers named in the judgment instead of C.B.I. This Division Bench judgment was taken to Supreme Court.
8. Thus in T.T. Antony ( supra) four appeals were filed before Supreme Court; one by T.T.Antony, the then Executive Magistrate, Kannur; another by fourteen Constables; and two appeals by State of Kerala. Supreme Court considered following questions :
"(i) whether registration of a fresh case, Crime No.268/97, Kuthuparamba Police Station on the basis of the letter of the DGP dated July 2, 1997 which is in the nature of the second FIR under Section 154 of Cr.P.C. is valid and can it form the basis of a fresh investigation?
(ii) Whether the appellants in Appeals Nos.689/2001 and 4066/2000 (arising out of SLP (Crl.) 1522/00 and SLP (C) 8840/00) and respondent in Appeals Nos. 69891/01 (arising out of SLP (Crl.) Nos.272425/00) have otherwise made out a case for quashing of proceedings - Crime No.268/97 Kuthuparamba Police Station?;
(iii) what is the effect of the report of Sri K. Padmanabhan Commission of Inquiry?; and
(iv) whether the facts and the circumstances of the case justify a fresh investigation by CBI?"
10. Questions (i) and (ii) were interconnected relating to registration of FIR. Supreme Court held that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.P.C., only the earliest or the first information in regard to the commission of a cognizable offence satisfy requirements of Section 154 Cr.P.C. and there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House diary, the officer-in- charge of a Police Station has to investigate not merely the cognizable offence reported in FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C. In the facts of the case, Court held that on the basis of letter of Director General of Police, registration of another FIR was not permissible under the scheme of Cr.P.C. and consequently investigation made pursuant thereto is not valid.
5. In view of above, it cannot be said that second F.I.R. is barred. In the present case, the victim herself has lodged the report in question. Subsequent to the F.I.R., statement of the victim was also recorded under Section 164 Cr.P.C. wherein she has supported F.I.R. version. Copy of the statement recorded under Section 164 is part of short counter affidavit filed by learned A.G.A. As such, no case for interference is made out.
6. Writ petition is accordingly dismissed. Order Date :- 26.11.2019 YK