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2009 DIGILAW 1115 (JHR)

Shivnarayan Prasad v. State of Jharkhand

2009-08-12

R.R.PRASAD

body2009
JUDGMENT : This application has been filed for quashing the order dated 17.4.2009 passed by learned Chief Judicial Magistrate, Ranchi under which complaint case lodged by Prem Kumar Khatri, respondent no.2 was sent to concerned police station under section 156(3) of the Code of Criminal Procedure for its institution and investigation and also for quashing the first information report, bearing Chutia P.S. case no.79 of 2009 instituted pursuant to aforesaid order passed by the learned Chief Judicial Magistrate. Learned counsel appearing for the petitioner submits that on 10.2.2007 one Ravindra Kumar, son of the petitioner had married to Payal Khatri (daughter of respondent no.2) who received burn injury accidentally on 10.1.2009 and hence, she was admitted to T.M.H, Jamshedpur where she remained under treatment for about 17 days but unfortunately died on 27.1.2009. On the same day, respondent no.2 (father of the deceased) gave information before the Police Officer of Bistupur Police Station at its police camp at T.M.H that her daughter had received burn injury and hence, she had been brought to T.M.H for the treatment where she died at 11.20, upon which U.D case No.1 of 2009 dated 3.2.2009 was instituted. While the matter was under investigation, respondent no.2 after four months of the occurrence, lodged a complaint case bearing no.549 of 2009 on 17.4.2009 putting false allegation that after the marriage of his daughter, all the accused persons started subjecting her to torture on account of non-fulfillment of demand of dowry and ultimately her husband and other accused persons burnt her to death and thereby they committed offence of dowry death. On receiving the said complaint, learned Chief Judicial Magistrate under order dated 19.2.2009 sent it to concerned police station under section 156(3) of the Code of Criminal Procedure for its institution. On receiving the said order, the Officer-in-Charge of Chutia Police Station, vide its letter dated 24.2.2009 informed to the Chief Judicial Magistrate that one U.D. case, bearing no.1 of 2009 on the basis of statement made by respondent no.2 has already been instituted on 3.2.2009 which is being investigated upon but this fact has not been mentioned by the complainant and as such, there appears to be an ulterior motive on the part of the complainant. Subsequently, respondent no.2 filed an application before the Chief Judicial Magistrate and the learned Chief Judicial Magistrate then passed an order on 24.4.2009 under which he again sent the complaint under section 156(3) of the Code of Criminal Procedure to the Chutia Police Station for its institution, upon which case was instituted and as such, the said order as well as first information report instituted under the aforesaid order have been sought to be quashed on the ground that the learned Magistrate failed to appreciate that there had been no need to resend the complaint petition to the police station as investigation regarding death of the deceased was going on in connection with U.D case no.1 of 2009. Learned counsel further submits that once the information regarding death of the deceased has already been given by the respondent no.2, upon which investigation was going on, any institution of first information report on the subsequent version would be quite illegal as for the same event two investigations cannot be carried out and, therefore, institution of the case as Chutia P.S. case no.79 of 2009 is bad in the law and hence, the same is fit to be set aside. Learned counsel in support of his submission has referred to a decision rendered in a case of Ajay Paswan vs. State of Jharkhand and others [ 2009 (2) JLJR 218 ] wherein it has been held that second first information report for the same and similar offence is not maintainable as any subsequent statement be treated as the statement falling under section 161/162 of the Code of Criminal Procedure. Thus, it was submitted that the order under which complaint case was sent for its institution under section 156(3) of the Code of Criminal Procedure and also the first information report are fit to be set aside. There has been no denying of the fact that the scheme of Code of Criminal Procedure is that an Officer-in-Charge of a Police Station has to commence investigation as provided in section 156 or 157 of the Code of Criminal Procedure on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence . On completion of investigation and on the basis of the evidence collected, he has to form an opinion under section 169 or 170 of the Code of Criminal Procedure, as the case may be, and forward his report to the Magistrate concerned under section 173(2) of the Code of Criminal Procedure. However, even after filing such report if he comes into possession of further information or material, he need not register a fresh first information report as any subsequent statement will be statement falling under section 161/162 of the Code of Criminal Procedure and at the same time he is empowered to make further investigation. The aforesaid view has been expressed by the Hon’ble Supreme Court in a case of T.T.Antony vs. State of Kerala andothers [ (2001) 6 SCC 181 ]. Such view has been expressed on the premise that first information report lodged did disclose cognizable offence but here, in the instant case, as it appears from the statement made by the respondent no.2, as contained in Annexure 3 on the basis of which U.D case was lodged that it never discloses any commission of cognizable offence, rather simple information of deceased receiving burn injury was given whereas written complaint upon which first information report was lodged does disclose commission of the cognizable offence. In a case of Ajay Paswan vs. State of Jharkhand and others, as referred to above, information regarding commission of an offence of kidnapping of the victim was given, upon which U.D case was registered but no name of the accused had been given. Subsequently, while the matter was under investigation, second first information report was lodged wherein allegation was made of the commission of the offence under section 306 but by the time the police in course of investigation of the U.D case did not find any hand of the accused and under this situation, it was held by this Court that the second first information report for same and similar offence is not maintainable but here as I have noticed, the fact is quite different and under this situation, I do not find any substance in the submission advanced on behalf of the petitioner and hence, this application stands dismissed.