By means of this writ petition, the petitioners have sought the following reliefs:
(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned FIR (Annexure-1 to the writ petition) of Case Crime No.148 of 2013, under Sections 380, 323, 504, 506 IPC and Section 3(1)(X) of SC/ST Act, Police Station Bazarkhala, District Lucknow.
(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to arrest the petitioners pursuant to the impugned FIR.
(iii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to refrain from using coercive measures against the petitioners."
In this writ petition, an interim order has been passed by another Division Bench of this Court, vide order dated 10.06.2013, which is as under:
"Upon perusal of the record we find that for the same very incident the petitioner has already lodged the First Information Report on 03.04.2013. The date of incident is 13.03.2013. The complainant also moved an application before the learned Magistrate concerned under Section-156(3) Cr.P.C. for necessary action. The learned Magistrate had passed an order, upon which the First Information Report has been lodged.
After comparing those reports we find that to some extent the allegations levelled against each other are different, but the same happened during the course of same very incident. The matter is under investigation, therefore, we are of the view that there is no occasion to proceed for another investigation on different first information report for the same very incident. Under these circumstances we hereby stay the operation and implementation of the first information report impugned in the writ petition till the next date of listing.
Four weeks time as prayed by leaned A.G.A. is allowed to file counter affidavit.
List thereafter."
A short counter affidavit has been filed on behalf of the State stating therein that in this case, charge-sheet has been filed against the petitioner-Virendra Kumar Mishra. Consequently, vide order dated 15.07.2014, this writ petition was dismissed as infructuous. Thereafter the petitioners filed recall application stating therein that the charge-sheet has not yet been filed before the learned Magistrate concerned. The recall application filed by the petitioner has been allowed vide order dated 12.08.2014.
Heard Sri C.B. Pandey, learned counsel for the petitioners and learned A.G.A. for the State.
It has been contended by learned counsel for the petitioners that in this case, the aforesaid first information report sought to be quashed is in respect of the incident which has been taken place on 13.03.2013 and against that incident, the petitioner Virendra Kumar Mishra has lodged an FIR (Annexure-2 to the writ petition) with Case Crime No.96 of 2013, under Sections 504, 506, 448 IPC against the complainant. After lodging of this FIR, the opposite party no.4 moved an application under Section 156(3), Cr.P.C. before the concerned learned Magistrate and on that application, the FIR impugned has been lodged against the petitioners. It has also been contended by learned counsel for the petitioner that the impugned FIR has been lodged as a counterblast in order to preempt any lawful action against the opposite party no.4. It has also been contended that for one incident two first information reports could not be registered and in support of his contention, learned counsel for the petitioners relying upon the judgments of Apex Court in the case of Anuj Chaudhary Vs. State of Uttar Pradesh and another; (2013) 6 SCC 384 and in the case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and another; (2013) 6 SCC 348. Learned counsel for the petitioners inviting the attention of this Court towards paragraph 14 of Anuj Chaudhary's case (supra) and then submitted that the purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.
The perusal of aforesaid two first information reports clearly indicate two different incidents. The impugned FIR lodged by opposite party no.4 is in respect of the first incident which has been taken place on 13.03.2013 in the morning and second incident is said to have been occurred on 14.03.2013 in between 3-4 PM. The first incident occurred in the morning discloses that when the opposite party no.4 come to his shop in the morning on 13.03.2013, he saw that the shutter of his shop was broken and the articles kept in his shop were lying in the office of petitioner Virendra Kumar Mishra. When he asked about it from the petitioner Virendra Kumar Mishra, then both the petitioners, namely, Virendra Kumar Mishra and Iqbal beaten him by kick and fist, abused him with the name of his cost and threatened to kill him. The opposite party no.4 gave a written report on the same day in the police station which was acknowledged by the police. The second incident, which is said to have been occurred on 14.03.2014, discloses that when the opposite party no.4 was sitting in his shop, one unknown person came out of the office of petitioner Virendra Kumar Mishra and show a pistol towards him and abused him in the name of his cost and threatened that if he will not vacate the shop within two days, he will be killed and further asked that whatever given in the police station should be taken back. This incident was also reported in the police station on 15.03.2014 and the same was also acknowledged by the police.
The FIR lodged by the petitioner Virendra Kumar Mishra contains two incident. First in respect of the incident, which is said to have been occurred on 12.03.2013 and second in respect of the incident, which is said to have been occurred on 13.03.2013 at 9:00 PM (night). In respect of the first incident, it has been disclosed that the opposite party no.4 put lock in the store of the school and when one Smt. Sonika Mishra protested, the opposite party no.4 abusing her stated that if any person touch the lock, he will be killed. In respect of second incident, it has been disclosed that the opposite party no.4, his son and Irshad along with 15-20 Goondas came and broken the lock of the shutter of the petitioner and put his goods in the shop in order to take forceful possession. Thereafter they taken away two computers along with printer and other important documents.
From the perusal of the aforesaid two first information reports makes no room to doubt that both the first information reports are not relating to one incident or in respect of the same transaction. In view of above facts and circumstances, it cannot be said that these two first information report are in respect of the same incident or in respect of the incident which were said to have been taken place in same transaction. Therefore, the impugned FIR, which admittedly constitute a cognizable offence, cannot be quashed. Moreover, the investigation is completed and according to the counter affidavit, the charge-sheet is going to be filed against the petitioners.
Lastly, it has been contended by learned counsel for the petitioners that the matter is amicably settled between the parties and the opposite party no.4 has already vacated the shop in question after taking the money from the petitioner.
If it is so, it is open to the parties to approach the Investigating Officer, if charge-sheet has not yet been filed or to the learned Magistrate concerned where the charge-sheet has to be filed.
However, it is provided that in case the petitioners appear before the court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of by the courts below in view of the case of Smt. Amrawati and another Vs. State of U.P. 2005 Cr.L.J. 755, which has been approved by the Hon'ble Apex Court in Lal Kamlendra Pratap Singh Versus State of U.P. reported in 2009(4) S.C.C. 437.
The writ petition is accordingly disposed of.
Dated: 25th September, 2014 akverma