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2013 DIGILAW 865 (MP)

Surendra Sharma v. Ramcharan Lal Jatav

2013-07-25

BRIJ KISHORE DUBE

body2013
ORDER : 1. This petition under section 482 of Criminal Procedure Code is preferred by the petitioners for quashing the order dated 15-4-2013 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No........./2013 complaint (Ramcharan Lal and Others vs. Surendra Sharma and Others) whereby the complaint application filed by the respondents No. 1 and 2 herein/complainants was ordered to be sent to Officer-in-Charge of the concerned Police Station for lodging of the FIR on the basis of the complaint and submit a report after conducting the investigation in the matter. 2. Short facts of the case are that on 7-4-2013 at 11.00 a.m. Omprakash (Respondent No. 2 herein) along with his neighbour, Ratan Singh Kushwah reached to the Police Station, Thatipur and lodged a report to the effect that on the same day i.e. 7-4-2013 at 9.30 a.m. he was cleaning his shop situated in his house, at that time the accused, Surendra Sharma, Harsh Sharma, Bunty and Shailu came to his shop and hurled abuses, on restraining to do so, Bunty dealt a lathi blow which struck over his head, then he shrieked, on hearing the shriek, his father, Ram Charan Lal came to save him, then all the accused persons caught hold and threw down as well as beaten him, Harsh dealt a danda blow as a result of which, his father sustained injuries over his both the legs. Surendra dragged him out from the shop and threw down and beaten him as a result of which, he also sustained the injuries. They also threatened to kill him. On the basis of the aforesaid, an FIR was registered at Crime No. 135/2013 for the offence under sections 294, 323, 506 read with 34 of Indian Penal Code. The criminal law was triggered and set in motion. Thereafter, the respondents No. 1 and 2 filed a complaint application under sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 307, 326, 294, 506-B read with 34 of Indian Penal Code against the accused persons (petitioners herein) before the Court on 15-4-2013 alleging the incident and that the police has not recorded the report as per the incident narrated by the complainants but the report has been distorted. The complainants are getting treatment in J.A. Group of Hospital as indoor patients and belongs to the Scheduled Caste. The complainants are getting treatment in J.A. Group of Hospital as indoor patients and belongs to the Scheduled Caste. Ramcharanlal has sustained fracture in both the legs. The accused being influenced persons, the report was not properly lodged and no suitable action has been taken on the complaint, therefore, case may be registered against the accused (petitioners herein) under section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 307, 326, 294, 506-B read with 34 of Indian Penal Code. The Court below considered the complaint application and vide the impugned order passed under section 156(3) of Criminal Procedure Code ordered to send the complaint application to the Officer-in-Charge of the concerned Police Station with a direction to register the FIR on the basis of the complaint and to make the investigation and submit the report to the Court. Being aggrieved thereof, this petition has been preferred by the petitioners. 3. Learned counsel for the petitioners submits that respondent No. 1, Ramcharan Lal has agreed to sell his house in favour of the petitioner No. 1, Surendra Sharma for a consideration of Rs. 85.00 lakhs and executed an agreement. Subsequently, Ramcharan Lal did not execute the sale deed, therefore, Surendra Sharma filed a Civil Suit for Specific Performance of the Contract to Sale and permanent injunction which is pending before III Additional District Judge, Gwalior wherein temporary injunction has been passed in favour of the petitioners. On 7-4-2013, respondents No. 1 and 2 along with their associates came and tried to forcibly dispossess, therefore, a quarrel took place between both the parties in which members of both the parties have sustained injuries. On the basis of report lodged by both the parties, cases were registered against each other. It is further submitted that on the basis of report lodged by the respondent No. 2, an FIR at Crime No. 135/2013 was registered and the case is under investigation. The complainants had filed the complaint with an intention to harass the petitioners. He also submits that the complaint submitted by the respondents No. 1 and 2 is of the same incident, therefore, on the basis of same facts, second FIR as directed by the learned Magistrate cannot be registered. There can be no second FIR in respect of the same cognizable offence. He also submits that the complaint submitted by the respondents No. 1 and 2 is of the same incident, therefore, on the basis of same facts, second FIR as directed by the learned Magistrate cannot be registered. There can be no second FIR in respect of the same cognizable offence. In this regard, learned counsel placed reliance upon the following decisions: (i) Ashwini Kumar vs. State of Rajasthan, 1997 Cri. L.J. 813. (ii) T.T. Antony vs. State of Kerala and Others, 2001 Cri. L.J. 3329. (iii) Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and Another, 2013 Cri. L.J. 2313. 4. In response, learned counsel for the respondents argued in support of the impugned order. Shri R. K. Goyal, learned counsel for the respondents No. 1 and 2 submits that the law does not prohibit registration and investigation of two FIRs in respect of the same incident, therefore, learned trial Court has not committed any error in exercising the power under section 156(3) of Criminal Procedure Code to register the FIR. Learned counsel in support of his contention placed reliance upon the cases of Shivshankar Singh vs. State of Bihar, (2012) 1 SCC 130 and Anju Chaudhary vs. State of Uttar Pradesh and Another, (2013) 6 SCC 384 . 5. I have considered the rival contentions of the learned counsel for the parties and perused the record. 6. In Ashwini Kumar (supra), the first FIR was lodged under sections 409, 420, 120-B of Penal Code and after completing the investigation challan was filed. In that situation, it was held by the High Court of Rajasthan that subsequent FIR lodged for the offence under NDPS Act on same facts given in the earlier FIR is not permissible though the police has right to conduct further investigation and submit supplementary charge-sheet. In the case of T.T. Antony (supra), the Hon'ble Apex Court held that there can be no second FIR in respect of same cognizable offence or same incident or occurrence. It has further been held by the Apex Court that under the scheme of the provisions of sections 154, 155, 156, 157, 162, 169, 170 and 173 of Criminal Procedure Code only the earlier or the first information in regard to the commission of a cognizable offence satisfies the requirements of section 154, Criminal Procedure Code. It has further been held by the Apex Court that under the scheme of the provisions of sections 154, 155, 156, 157, 162, 169, 170 and 173 of Criminal Procedure Code only the earlier or the first information in regard to the commission of a cognizable offence satisfies the requirements of section 154, Criminal Procedure Code. Thus, there can be no second FIR and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a Police Station has to investigate not merely the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in section 173 of the Criminal Procedure Code. In the case of Amitbhai Anilchandra Shah, the Hon'ble Apex Court held that where offences committed in same transaction, recording of second FIR impermissible. 7. The Hon'ble Apex Court in the case of Anju Choudhary (supra) considered a cardinal question of public importance that whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence? The Apex Court after considering its earlier decisions on the question including in the case of Shivshankar Singh (supra) held as under:- “25. The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of ‘sameness’ to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai vs. State of Gujarat and Others, (2010) 12 SCC 254 . This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc. 26. To illustrate such a situation, one can give an example of the same group of people committing theft in a similar manner in different localities falling under different jurisdictions. Even if the incidents were committed in close proximity of time, there could be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, riots may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. Similarly, riots may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj (supra), the Court took the view that: “14.......there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report.” 8. On examining the facts of the present case, it is apparent that the alleged incident mentioned in the complaint application was occurred on 7-4-2013 at 9.30 a.m. The place of occurrence of the incident is the same i.e. the shop of the complainants. Thus, it is clear that both the FIRs relates to the same incident and to the same occurrence. 9. In view of the above discussion and in light of the principles stated (supra), the direction issued by the learned Magistrate by the impugned order to register the alleged second FIR on the basis of complaint application is contrary to law and accordingly deserves to be set aside. 10. In view of the aforesaid, the impugned order is having apparent perversity and as such requires interference, therefore, by invoking the inherent powers under section 482 of Criminal Procedure Code, the impugned order dated 15-4-2013 passed by Judicial Magistrate First Class, Gwalior is set aside. It is made clear that this Court has not gone into the merits of the rival claims of both the parties and it is for the trial Court to decide the same in accordance with law. 11. With the aforesaid, the petition stands allowed and disposed of accordingly.