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2002 DIGILAW 770 (AP)

RAMU v. State

2002-06-24

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioners, who are the accused in CC No. 351 of 2000 on the file of the II Additional Judicial First Class magistrate, Nellore, seek quashing of the proceedings invoking the inherent powers of this Court vested under Section 482 Cr. PC. ( 2 ) THE background of the case leading to filing of the complaint can briefly be stated as follows: The second respondent herein is the de facto complainant, who has given a repot to the Nellore Law and Order police, which lead to registered as Crime no. 45 of 1990. Thereafter, the police filed charge-sheet against two persons, namely, bode Murali Krishna Reddy and Pottu murali, @ Batchu Murali. The trial Court took cognizance of the offences under sections 457, 452, 342 and 427 IPC. However, the Court below acquitted them by order dated 21-8-1996, following the guide lines provided by the Supreme Court. There after the second respondent-de facto complainant filed another complaint in respect of the same incident. It is necessary to extract the averments made by the de facto complainant-second respondent in his complaint filed under Section 200 read with 190 Cr. PC. which reads as under:"the Police have not investigated the crime no. 165 of 1995 in a proper manner and further the investigation is biased. The complaint got a very good case to agitate the matter before the Court of law. The honourable Court has dismissed the case cc No. 177 of 1990 on 21-8-1996 under the order of the High Court of AP with reference to the orders of the Supreme Court against the accused Bode Muralikrishna Reddy, bachu Murali. Further the Honourable Court has dismissed CF 6556/95 also with an endorsement CF 6556/95 is dismissed since cc 177 of 1990 is dismissed by the orders of the High Court of AP with reference to the orders of the Supreme Court. " ( 3 ) THEREAFTER the said private complaint, registered as Crime No. 165 of 1995 and later the II Additional Judicial first class Magistrate, Nellore took cognizance for the offences under Sections 457 452, 427 and 342 IPC in CC No. 351 of 2000 and recorded statements of the second respondent. " ( 3 ) THEREAFTER the said private complaint, registered as Crime No. 165 of 1995 and later the II Additional Judicial first class Magistrate, Nellore took cognizance for the offences under Sections 457 452, 427 and 342 IPC in CC No. 351 of 2000 and recorded statements of the second respondent. ( 4 ) SRI ATM Ranga Ramanujam senior Counsel representing K. G. Surenderanath yaday, learned Counsel for the petitioners assails that the question of second complaint, in respect of the same incident on the same set of facts does not arise. It is also contended that in the earlier case, the de facto complaint disclosed two names, whereas in the present private complaint, he disclosed names of nine persons, in respect of the same incident that took place on 12-2-1990. ( 5 ) THE learned Counsel for the second respondent de facto complainant did not appear and advance his arguments before this Court. ( 6 ) THE learned Public Prosecutor appearing on behalf of the first respondent contends that though the complaints are in respect of the same incident that took place on 12-2-1990 and after investigation, the police noticed that the private complaint is mistake of fact. ( 7 ) THE learned Counsel for the petitioners has also placed reliance on the decision of the Supreme Court in t. T. Antony v. State of Kerala. The relevant paragraph 21 in the said decisions reads as under:"the learned Solicitor-General relied on the judgment of this Court in Ram Lal Narang and others v. State (Delhi Administration, 1979 (2) SCC 322 ); ( AIR 1979 SC 1791 ) to contend that there can be a second FIR in respect of the same subject-matter. In that case the contention urged by the appellant was that the police had committed illegality, acted without jurisdiction in vesting into the second case and the Delhi Court acted illegally in taking cognizance of that (the second) case. A reference to the facts of that case would be interesting. Two precious antique-pillars of sand stone were deposited in the Court of Ilaqa Magistrate, Karnal, as stolen property. One AW Malik filed an application before the Magistrate seeking custody of the pillars to make in detail study on the pretext that there was a research scholar. It appears that the then Chief Judicial magistrate of Karnal (HL Mehra) was a friend of Malik. One AW Malik filed an application before the Magistrate seeking custody of the pillars to make in detail study on the pretext that there was a research scholar. It appears that the then Chief Judicial magistrate of Karnal (HL Mehra) was a friend of Malik. At the instance of Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given to Malik on his executing a bond. About three months thereafter, Malik deposited two pillars in the court of Ilaqa Magistrate, Karnal. After some time it came to light that the pillars returned by Malik were not the original genuine pillars but were fake pillars. An fir was lodged against both Malik and mehra under Section 120-B read with sections 406 and 420 of IPC alleging conspiracy to commit criminal breach of trust and cheating. The CBI after necessary investigation filed charge-sheet in the Court of Special Magistrate. Amala against both of them. Ultimately, on the application of the public Prosecutor the case was permitted to be withdrawn and the accused were discharged. Some time later the original genuine pillars were found in London which led to registering an FIR in Delhi under section 120-B read with Section 411 of IPC and Section 25 (1) of the Antiquities and Art treasures Act, 1972 against three persons who were brothers (referred to as Narangs ). The gravemen of the charge against them was that they Malik and Mehra conspired together to obtain custody of the genuine pillars, got duplicate pillars made by the experienced sculptors and had them substituted with a view of smuggle out the original genuine pillars to London. After issuing process for appearance of Narangs by the Magistrate at Delhi, an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before ambala Court, therefore, the Delhi Court acted without jurisdiction in taking cognizance of the case on the basis of illegal investigation and the report forwarded by the police. The Magistrate referred the case to the High Court and Naranga also filed an application under Section 482 Cr. PC to quash the proceedings. The High Court declined to quash the proceedings dismissed the application of Narangs and thus answered the reference. The Magistrate referred the case to the High Court and Naranga also filed an application under Section 482 Cr. PC to quash the proceedings. The High Court declined to quash the proceedings dismissed the application of Narangs and thus answered the reference. On appeal to this Court, it was contended that the subject-matter of the two FIRs and two charge-sheets being the same there was an implied bar on the power of the police to investigate into the subsequent FIR and the Court at Delhi to take cognizance upon the report of such information. This Court indicated that the real question was whether the two conspiracies were in substance and truth, the same and held that the conspiracies in the two cases were not identical. It appears to us that the Court did not repeal the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different the first was a smaller conspiracy and the second was the larger conspiracy as it turned out eventually. It was pointed out that even under the Code of 1898 after filing of final report there could be further investigation and forwarding of further report. The 1973 Cr. PC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 of Cr. PC and forwarding of further report or reports to the concerned Magistrate under Section 173 (8) of Cr. PC. It follows that if the gravamen of the charges in the two FIRs the first and the second is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr. PC will be irregular and the Court can not take cognizance of the same. " ( 8 ) MY attention is also drawn to the averments made in paragraph 8 of the complaint, which reads as under:"the Court may be pleased to note that the accused and charges on the accused are quite different in this case. Against these accused, there are no criminal cases and also charges pending before this Honourable Court at present. Further new facts came into light and since charges are also different on the accused. Against these accused, there are no criminal cases and also charges pending before this Honourable Court at present. Further new facts came into light and since charges are also different on the accused. " ( 9 ) IT is stated that originally FIR No. 45/90 was registered against Bode Murali reddy and 15 others. The police have not filed charge-sheet against all of them except two. On the same set of facts, the second respondent filed present complaint disclosing the remaining names of the persons who participated in the alleged crime on the ground that new facts came to light. When the second respondent was examined, he stated that new facts came to light and charges were also different against the accused. It is clear from the decision of the supreme Court that second complaint does not lie on the same incident and it is abuse of process of law. It is clearly laid down in the decision supra that second complaint does not lie on the same set of facts and it is not maintainable. ( 10 ) APPLYING the principle laid down by the Supreme Court in the decision supra, i state that it is a case where inherent powers can be exercised to quash the proceedings, since the second complaint on the same set of the facts and against the same incident is not maintainable or abuse of process of law. ( 11 ) IT is also contended that the complaint is barred by limitation as it is not filed within five years from the date of incident. Section 468 of Cr. PC has no application to the facts of the case and is not barred by limitation. ( 12 ) LI view of the foregoing discussions, the Proceedings in CC No. 351 of 2000 on the file of the n Additional Judicial First class Magistrate, Nellore are quashed. ( 13 ) THE criminal petition is allowed accordingly.