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Allahabad High Court · body

2008 DIGILAW 804 (ALL)

AWADHESH SINGH v. STATE OF UTTAR PRADESH

2008-04-09

VIJAY KUMAR VERMA

body2008
JUDGMENT Hon’ble Vijay Kumar Verma, J.—Heard Sri Jitendra Prasad Mishra, learned Counsel for the applicant and learned A.G.A. for the State and perused the record. 2. By means of this application under Section 482 of the Code of Criminal Procedure (in short, the Cr.P.C.), order dated 10.3.2008 passed by the C.J.M., Banda on the application of the applicant under Section 156(3), Cr.P.C. has been challenged. 3. By the impugned order, the application moved by the applicant under Section 156(3), Cr.P.C. has been rejected. 4. From the record, it transpires that an F.I.R. was lodged at P.S. Kamasin by Shankar Singh s/o Shiv Nayak Singh resident of Shohut. On the basis of that F.I.R., a case under Section 302, I.P.C. at case crime No. 206/07 was registered against unknown persons on 27.11.2007 at 1.10 a.m. It was alleged in that F.I.R. that when Kamlesh Singh, brother of the informant alongwith Dhanpat S/o Bahori was irrigating his field from the tube-well of Indresh Singh on 26.11.2007 at about 9.30 p.m., four unknown persons committed his murder by causing injuries to him by firearms. During pendency of the investigation of that case, the applicant Awadesh Singh, who is also the brother of the informant Shankar Singh moved an application under Section 156(3), Cr.P.C. in the Court of C.J.M. Banda nominating opposite party No. 2 to 6 as accused. It is alleged in that F.I.R. that his brother Kamlesh taking Rs. 46,000/- from his mother had gone with the accused Brij Kumar Singh, Ram Chandra Singh, Dhanpat, Pappu and Ram Bharat Singh for purchasing building material to construct the house, who committed his murder at about 9.30 p.m. and robbed the money, which he was carrying. After calling for a report from police station concerned, the learned Chief Judicial Magistrate vide impugned order dated 10.3.2008 has rejected the application under Section 156(3), Cr.P.C. vide impugned order. Being aggrieved, the applicant has approached this Court to quash that order. 5. The application moved by the applicant under Section 156(3), Cr.P.C. has been rejected by the learned C.J.M., Banda vide impugned order mainly on the ground that F.I.R. regarding murder of Kamlesh has already been lodged at P.S. Kamasin at case crime No. 206/07 and investigation is going on and hence, for the same murder second F.I.R. cannot be lodged. 6. The application moved by the applicant under Section 156(3), Cr.P.C. has been rejected by the learned C.J.M., Banda vide impugned order mainly on the ground that F.I.R. regarding murder of Kamlesh has already been lodged at P.S. Kamasin at case crime No. 206/07 and investigation is going on and hence, for the same murder second F.I.R. cannot be lodged. 6. Placing reliance on the case of Vikram and others v. State of Maharashtra, (2008) 1 SCC (Cri) 362, it is submitted by learned Counsel for the applicant that second F.I.R. in this case is not barred, as first F.I.R. was not properly lodged by S.O. P.S. Kamasin. It is further submitted that application naming the opposite party Nos. 2 to 6 was submitted by Shankar Singh regarding the murder of Kamlesh, but S.O. P.S. Kamasin did not lodge the F.I.R. on the basis of that application and F.I.R. against unknown persons has been lodged and hence, on this ground also second F.I.R. is not barred. 7. Having heard learned Counsel for the parties and carefully gone through the case of Vikram and others v. State of Maharashtra (supra), I am of the considered view that there is no justification to direct registration of second F.I.R. in this case regarding murder of the deceased Kamlesh Singh. From the First Information Report (Annexure-I), it is revealed that Dhanpat was the eye-witness of the incident of murder of Kamlesh Singh as he was helping the deceased in irrigating his field from the tube-well of Indresh Singh. The informant Shankar Singh has also shown himself as the eye-witness of that incident. First Information Report was lodged by the informant Shankar Singh against unknown persons and it is specifically mentioned in that report that four unknown persons had committed the murder of Kamlesh Singh by causing injuries to him by firearms. The informant Shankar Singh has not made any complaint that his F.I.R. was not recorded properly by S.O. P.S. Kamasin. He did not move any application under Section 156(3), Cr.P.C. for lodging another F.I.R. Investigation of the case registered at crime No. 206/2007 is going on. The informant Shankar Singh has not made any complaint that his F.I.R. was not recorded properly by S.O. P.S. Kamasin. He did not move any application under Section 156(3), Cr.P.C. for lodging another F.I.R. Investigation of the case registered at crime No. 206/2007 is going on. Therefore, having regard to the facts and circumstances of this case, the learned Chief Judicial Magistrate, Banda had not committed any illegality in rejecting the application under Section 156(3), Cr.P.C. moved by the applicant Awadhesh Singh for lodging second F.I.R. regarding the murder of his brother Kamlesh Singh against the opposite parties No. 2 to 5. Although, as held by this Court in the case of Vipin Chaudhary and others v. State of U.P. and others, 2005 (51) ACC 533, second F.I.R. regarding the same incident is not barred, but for the reasons mentioned herein-above, in instant case, second F.I.R. cannot be permitted to be lodged, as the first F.I.R. of case crime No. 206/2007 was lodged by the eye-witnesses of the incident of murder of deceased Kamlesh Singh. The law laid down by Hon’ble Apex Court in the case of Vikram Singh and others v. State of Maharashtra (supra) is not helpful in instant case for the reasons mentioned above. 8. Next submission made by learned Counsel for the applicant is that F.I.R. was lodged on 26.11.2007, but no action has been taken so far by the Investigating Officer and hence, direction should be issued to the Investigating Officer concerned to make proper investigation. This prayer of the applicant’s Counsel may be accepted. The Hon’ble Apex Court in the case of Sakiri Basu v. State of U.P. and others, (2008) 1 SCC (Cri) 440, has held that under the provisions of Section 156(3), Cr.P.C., the Magistrate has implied jurisdiction to monitor the investigation. Hence, direction can be issued to the Chief Judicial Magistrate, Banda to ensure proper investigation of case crime No. 206 of 2007. 9. In the result, the application under Section 482, Cr.P.C. is hereby rejected. However the Chief Judicial Magistrate, Banda is directed to issue necessary directions to the Station Officer of Police Station Kamasin (Banda) to make proper investigation of case crime No. 206/07 under Section 302, I.P.C. ————