Judgment :- (1) The order dated 12 January, 2009 passed in Criminal Motion No. 107 of 2008 by learned Additional Sessions Judge, 5th Court, Burdwan whereby upon setting aside the order of the learned Chief Judicial Magistrate dated. 15 September, 2008, the l/C Burdwan PS has been directed to register a petition, as an FIR under Section 156(3} of the Cr. P.C is under challenge at.the instance of the State. (2) The facts are these :- One Sujan Mondal of village Bandgacha in the District of Burdwan lodged an FIR with the Burdwan Police Station at 11.25 hours on 19th September, 2008 alleging the following incident:-His father Saber Ali Mondal, aged about 50 years had set out from his home at about noon on 18 August, 2008 for Burdwan Medical College and Hospital to see a co-villager who had been admitted in the said hospital. Sujan Mondal came to find at about 4.45 PM on the same day that his father had been lying restless beside the sweet meat shop of Tapan Ghosh of Palanpur. He took his father to a local doctor called Ajay Pradhan who after rendering preliminary treatment advised for hospitalization. Then he, his elder brother Selim Mondal, and a neighbour Dulal Munsi took his father to Burdwan Medical College and Hospital. On interrogation, his father told that at about 2.00 pm on 18th August, 2008, some unknown persons took him on the pretext of better medical treatment near Raj College where they severely assaulted him and then his father was lifted on a rickshaw and then taken to Palanpur by bus. His father died in the hospital at 1.30 A.M. (3) On this FIR, the Burdwan PS registered P.S. Case No.418 of 2008 dated 19th August, 2008 under Section 304 of Indian Penal Code. (4) On 21 st August, 2008, Sujan Mondals elder brother Selim Mondal lodged a petition with the learned Chief Judicial Magistrate, Burdwan under Section 156(3) of Cr.P.C alleging the selfsame incident but with a version 798 State of W.B. v. Selim Mondal May, 2009 which was not to the knowledge of Sujan Mondal but whose FIR was undoubtedly the first in point of time. Sujan Mondals petition contains the following allegations of fact. Sujan Mondals petition contains the following allegations of fact. (5) The father of Selim Mondal (who is also the father of Sujan Mondal) left for Burdwan Medical College and Hospital to see his friend who had been admitted in the hospital with severe injuries. Selim Mondal and one Ashok Ray accompanied his father to the said hospital. As soon as they reached out side the emergency department of Burdwan Medical College and Hospital, 30/35 people led by one Kausar Ali, being armed with weapon, pounced upon his father and with a view to killing him started assaulting his father at random and then dragged him inside the gate of Raj College. In the premises of Raj College, his father was again assaulted on different parts of his body. Selim Mondal requested the accused persons not to assault his father. The accused persons demanded a promise that the police would not be informed of the incident and that his father would not return back to hospital any more and when such assurance was made they released his father. Then by a rickshaw his father was brought to bus stand at Tinkania and then by a bus he was brought to Palanpur. At Palanpur after getting down from the bus, his father started vomiting and said in presence of the persons who were present there that he requested Kausar and Saber but they did not let him to live. In a-critical condition, his father was taken to the office of a political party and at about 8.00 pm he was admitted at Burdwan Medical College and Hospjtal where his father succumbed to the injuries. It has been alleged in the petition that the miscreants were 30-35 in number and the name of the persons who were known to the petitioner Selim Mondal could be mentioned in the petition and the rest could be identified if they could be seen again, but it is suspected that most of the miscreants were students of Raj College at Burdwan. (6) The learned Chief Judicial Magistrate referred this petition to the l/C Burdwan PS asking for investigation of the case by treating the same as an FIR under Section 156(3) of the Cr.P.C. The police submitted the report that since already an FIR had been registered on the complaint of Selim Mondals brother Sujan Mondal a second FIR on the selfsame incident was perhaps not permissible and hence prayed for necessary order. The learned CJM recalled back his earlier order in view of the police having registered a case already and this order of recalling dated 15th September, 2008 was challenged in revision at the instance of Selim Mondal before the learned Sessions Judge under Section 397/399 of the Cr.P.C. A Criminal Motion No. 107 of 2008 was heard by the learned Additional Sessions Judge, 5th Court, Burdwan who, as aforesaid, by his order dated 12th January, 2009 set aside the order of the learned CJM whereby the learned Magistrate recalled his earlier order, and directed the l/C to register a case on the petition of Selim Mondal under Section 156(3) of Cr.P.C. (7) This order of the learned Additional Sessions Judge dated 12th January, 2009 has been challenged by the State on the ground that as the incident depicted in the first FIR and that in the petition under Section 156(3) of Cr.P.C is the selfsame incident there cannot be two FIRs and the learned Additional Sessions Judge was quite wrong in directing the police to register a case for investigation on the basis of the petition of Selim Mondal under Section 156(3) of Cr.P.C. The case of T. T. Antony v. State of Kerala reported in 2001 SCC (Cr) 1048 and the decision in Ranbir Yadavv. State of Bihar, AIR 1995 SC 1219 have been cited by Mr. Y.J. Dastoor, learned Counsel appearing for the State/petitioner. (8) Mr. Sudipto Maitra, learned Counsel appearing for Selim Mondal the opposite party herein submitted at the thresh-hold of the hearing that this is an unusual case where the State resists registration of a case and his client is quite apprehensive whether in right earnest and spirit the police would really investigate into the offence. (8) Mr. Sudipto Maitra, learned Counsel appearing for Selim Mondal the opposite party herein submitted at the thresh-hold of the hearing that this is an unusual case where the State resists registration of a case and his client is quite apprehensive whether in right earnest and spirit the police would really investigate into the offence. His second submission with respect to the merit of the case is that this is not a case where there are two identical FIRs but is a case where two versions are appearing in the FIR and the proposed FIR under Section 156(3) of Cr.P.C. When the submission began, a supplementary affidavit has been filed by the opposite party showing that an FIR has been registered already by Burdwan Police on the strength of the petition of Selim Mondal being FIR No. 59 of 2009 dated 30th January, 2009 under Section 147,148,149/302 read with Section 34 of the I.P.C. against eight persons who were named in the petition of Selim Mondal under Section 156(3) of Cr.P.C. According to Mr. Maitra, the law is not that there cannot be more than one FIR concerning an incident if the versions of the incident are different. I have been taken the decisions in Upkar Singhv. Ved Prakash and Ors., 2004 (CRI. L.J.4219 : (2005)1 C Cr LR (SC) 36 ; Sandhya Ghosh v. State of West Bengal and Ors., (2005)2 C Cr LR (Cal) 343 ; Kari Choudhury v. Ms. Sita Devi and Ors., (2002)1 SCC 714 : 2002 C Cr LR (SC) 332 ; K. Ashokan and Ors. v. State of Kerala, (1998)3 Crimes 1 (SC); Mukeen Ullah and Ors. v. State of U.P. and Ors. 2006 Cr LJ 2606 and Anurag Tripathi v. State of U.P. and Anr. 2005 Cr LJ 3474. (9) It is not necessary to search out the case laws in support of the proposition that there can be one FIR relating to an incident with one kind of version and another FIR in respect of the same incident with a conflicting version of the same by the adversary, which is called a case and a counter case or a case and a cross case. In a case and counter case, it is an incident which is a single and indivisible one with conflicting version of one party pleading against the other and vice-versa. In a case and counter case, it is an incident which is a single and indivisible one with conflicting version of one party pleading against the other and vice-versa. In an incident, for example, A B and C have been severely assaulted, then on behalf of them, a case may be registered against X Y and Z. If in course of the same incident if any of the members of the group led by X Y and Z is brutally assaulted and put to death then an FIR at the instance of X Y and Z complaining of brutal assault and of death of a member of their group may be entertained. The question is whether in the case at hand it can be said that the two FIRs relating to the selfsame incident gave conflicting versions as against one another. (10) Reading between the lines of the two FIRs, one finds no difficulty to hold that they did not present conflicting versions as against each other. In fact, the latter FIR supplements the former lodged by Sujan Mondal. If his FIR is read, it would appear that he was not the companion with his father to Burdwan Medical College and Hospital who had the mission to see his ailing friend. His brother Selim Mondal and Ashok Ray as per the second FIR were the companions of his father to the hospital. As I find from Selim Mondals FIR, the accused persons named in the second FIR being armed with weapon pounced upon his father at hospital, started assaulting him at random, dragged him to the Raj College campus and again assaulted him there and then upon an assurance that police would not be informed of the incident his father was left off. Then by a rickshaw, Selim Mondal and his companion took his father to bus stand and then by bus his father was brought to Palanpur where his father, Selim Mondal and his friend got down from the bus. Upto this part of the incident, Sujan Mondal, FIR maker of the first FIR was not present with his father; and as such the version of the incident in which his father was assaulted could not be told in the FIR lodged by Sujan Mondal. Upto this part of the incident, Sujan Mondal, FIR maker of the first FIR was not present with his father; and as such the version of the incident in which his father was assaulted could not be told in the FIR lodged by Sujan Mondal. Sujan Mondal joined his elder brother or his father at Palanpur bus stand where he found his father lying restless as per the FIR of Sujan Mondal. His father was first examined by local physician and then transferred to Burdwan Medical College and Hospital. In the second FIR this is also apparent that from Palanpur bus stand his father was taken to Burdwan Medical College and Hospital where in terms of both the FIRs his father died at 1/1.30 am. In the second FIR, it has not been stated that at Palanpur his father was medically examined by one Dr. Ajay Pradhan, while in the first FIR it has not been stated that from Palanpur his father was taken to an office of a certain political party and then to Burdwan Medical College and Hospital. In the first FIR there is no name of accused persons primarily because of the fact that Sujan Mondal was not a witness to the incident of assault that allegedly took place first in front of emergency department of Burdwan Medical College and Hospital and then inside the campus of Raj College. In fact there is no conflict between the two FIRs and as I have already said the second FIR supplements the former. There is only one divergence which is this; In, the first FIR it has been alleged that the deceased said at Palanpur that some unknown persons assaulted him, while in the second FIR, it has been alleged by his brother Selim Mondal that the deceased made a dying declaration implicating Kausar Ali, Suber Ali Mondal and others. Since this is not a trial of the offence, the question as to why dying declaration was not mentioned in the FIR of Sujan Mondal is uncalled for. It is also not known whether Sujan Mondal was present when dying declaration was made. There is another feature which is that in the second FIR, the name of Sujan Mondal who was the FIR maker of the first FIR has not been named amongst the persons who was present at Palanpur. It is also not known whether Sujan Mondal was present when dying declaration was made. There is another feature which is that in the second FIR, the name of Sujan Mondal who was the FIR maker of the first FIR has not been named amongst the persons who was present at Palanpur. As Sujan Mondal was not a witness to the incident of assault his name has not been mentioned in the list of witnesses in the FIR of Selim Mondal. (11) This is quite clear now that it is not a case where one FIR is pitted against the other and vice-versa. The two brothers of the same father are FIR makers of the same incident. The FIR of the elder brother depicts the incident of assault which could not be told by his brother Sujan Mondal in his first FIR because Sujan Mondal was not present at the scene of the assault. Whether the deceased made any dying declaration or not is not the issue here. (12) In such circumstances, Mr. Dastoor has rightly submitted that there cannot be two FIRs over the one and the same incident. Before proceeding to consider the decision cited by Mr. Maitra, it is profitable to advert to T. T. Antony (supra) where their Lordships held as follows : "In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to ha ve been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482, Cr.P.C. or under Articles 226/227 of the Constitution". (13) In Upkar Singhs case, the principle in T. T. Antony has not been dissented from though the latter is a 3-Judge Bench decision. In Upkar Singhs case, it will appear that respondents FIR was pitted against an FIR lodged by the appellant and the grievance of the appellant was that his FIR against the respondent was not being entertained by the police. In such a context in Upkar Singhs case, the magisterial order directing the police to investigate into the FIR of the appellant was upheld. In such a context in Upkar Singhs case, the magisterial order directing the police to investigate into the FIR of the appellant was upheld. Kari Choudharys case (supra) as has been relied on by Mr. Maitra does not lay down any different proposition of law than what was said in T. T. Antonys case though the said case of T. T. Antony does not appear to have been cited here. However, in Kari Choudhary (supra) their Lordships observed as follows :-"But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation be carried on under both of them by the same investigating agency". (14) Therefore, neither T. T. Antony, nor Upkar Singh nor Kari Choudhary comes to the aid of Mr. Maitra. The decision of learned Single Judge of this Court in Sandhya Ghosh is in a different fact situation not exactly applicable to this case in hand but there also Upkar Singh was relied on. Mr. Maitra urges that the FIR of Selim Mondal should be investigated into on three grounds :-(a) In the FIR of Sujan Mondal there is no narrative of what the actual scene of the crime was because Sujan Mondal was not a eye witness to that incident but Selim Mondal was : (b) In Selim Mondals FIR there are names of the accused persons which could not find any berth in the FIR of Sujan Mondal and (c) There was dying declaration implicating the accused persons by the deceased which was omitted to be mentioned in the FIR of Sujan Mondal. Once we hold that the two FIRs did not conflict with each other or that one is not against the other and vice-versa then non-mentioning the names of the accused persons in the FIR of Sujan Mondal, Sujan Mondal not witnessing the incident of assault, and Sujan Mondal not mentioning the dying declaration of the deceased will be of no consequences. If Mr. If Mr. Maitra is apprehensive of the fact that the police taking advantage of this omission which is advantageous to the accused do not investigate the case in proper perspective then it would be an extra legal situation, and if that happens which the Court does not think that it would so happen, then the law of the country would definitely can take care of the situation and such apprehension must not be ventilated at this stage/The decision in K. Ashokan (supra) and Others is a decision rendered in appeal where their Lordships of the Supreme Court held that if an eye witness omits to mention the names of the assailants in the FIR such a fact cannot be ignored. This is not a situation here, because Selim Mondal is a eye witness to the incident and Sujan Mondal is not a eye witness to the incident. A Division Bench decision of the Allahabad High Court in Mukeen Ullah (supra) is in a different fact situation where it appears that there was second FIR with a rival version and that would not be hit under Section 162 of Cr.P.C. Therefore, the facts of the Division Bench decision of Allahabad High Court do not help Mr. Maitra. Yet there is another decision of a learned Single Judge of Allahabad High Court in Anurag Tripathi (supra). The facts of the said case are not as simple as the facts of the instant case of ours and in the said decision Anurag Tripathi against whom case was registered was alleged to have been injured and his complaint was not entertained. The question would arise what would be the fate of the petition of Selim Mondal ? There is scope for the police to examine Selim Mondal under Section 161 of Cr.P.C. If his FIR is not investigated and if Sujan Mondals FIR is treated as legal and valid then it cannot be said that such disclosures of Selim Mondal cannot be revealed through investigation and can be buried. In this connection I am prompted to refer to a decision in Ranbir Yadav (supra) where their Lordship of the Supreme Court while holding that Ext-10/1 could not be treated as an FIR held as follows :- ".........in the instant case after P.C. P.W. 1 testified about the incident, prosecution got the statement of P.C.P.W.1 exhibited Ext. 10/1 as according to it Ext. 10/1 as according to it Ext. 10/1 was the FIR. Such a course was legally permissible to the prosecution to corroborate the witness in view of Section 157 of the Evidence Act, Of course in a given case-as in the present one-the Court may on the basis of subsequent materials hold that the statement so recorded could not be treated as the FIR and exclude the same from its consideration as a piece of corroborative evidence in view of Section 162 of the Code but then on that score alone the evidence of a witness cannot be held to be inadmissible. The case of Zahiruddin (AIR 1947 PC 75) (supra) turned on its own facts, particularly the fact that during his examination-in-chief the witness was allowed to refresh his memory from the statement recorded under Section 161, Criminal Procedure Code, unlike the present one where the statement was admitted in evidence after P. C. P. W. 1 had testified about the facts from his own memory". (15) Therefore, this has to be held that the investigation pursuant to the FIR lodged by Sujan Mondal may take care of the disclosures made by Selim Mondal in his petition under Section 156(3) of Cr.P.C; as such investigation can be carried out on the basis of the FIR of Sujan Mondal and the law is clear that an, FIR cannot be encyclopedia of the entire gamut of the prosecution case. Now the question is what would follow when a second FIR has already been registered pursuant to the order of the learned Additional Sessions Judge. A separate investigation need not be carried out on the second FIR and the latter FIR may be tagged with the case record of the case diary of the I.O who has investigating upon the first FIR. Though a separate investigation on Selim MondalsFIR is not necessary, the disclosures as to the scene of the crime by the eyewitness Selim must not miss the notice of the I.O who gets an opportunity to investigate into the allegation raised there in accordance with law. (16) The application is accordingly allowed of with the above observations.