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2015 DIGILAW 100 (JK)

Nek Mohd. v. State of J. & K.

2015-03-13

JANAK RAJ KOTWAL

body2015
ORDER : Janak Raj Kotwal, J. 1. This is a petition under S. 561-A, Cr.P.C. whereby petitioners seek quashing of FIR No. 38/2014 registered with Police Station, Gharota as also the charge-sheet/challan No. 67/2014 therein filed by the Police after investigation. Heard. I have perused the record. 2. The occurrence, which has its origin in a dispute about land between the two sides, is alleged to have taken place on 1-7-2014. It is contended by the petitioners that they were ploughing the land when they were attacked by Farooq Ahmed, Irfan Ahmed, Mohd. Amin sons of Mohd. Din, Mohd Din and Mst. Arsha Bibi. Petitioner No. 1 lodged information about this incident at Police Station, Gharota and on the basis thereof FIR No. 37/2014 under Ss. 336, 323 and 147, RPC was registered at 6:25 p.m. against the persons above mentioned. However, Mohd. Din also lodged written information in respect of the same incident at the same Police Station on the same day against petitioner Nos. 1 and 2 and on that basis FIR No. 38/2014 under Ss. 307, 451 and 323, RPC was registered at 6:35 p.m. it is contended further that pursuant to investigation in FIR No. 37/2014, Police filed charge-sheet No. 69/2014 in the Court against above mentioned five persons under Ss. 336, 323 and 147, RPC, which has been transferred by the learned Chief Judicial Magistrate, Jammu to the Court of learned Judicial Magistrate, 1st Class (Munsiff), Jammu. Likewise, pursuant to investigation in FIR No. 38/2014, Police has filed charge-sheet No. 67/2014 against the petitioners under Ss. 307, 451, 354, 323, 147 and 506, RPC, which has been transferred by the learned Sessions Judge, Jammu to the Court of learned 2nd Additional Sessions Judge, Jammu. 3. What is, thus, indisputable is that two cross-informations arising out of the same incident were lodged by the opposing parties, one after the other. FIR No. 37/2014 was registered on the basis of information lodged by a person representing herein petitioners whereas FIR No. 38/2014 was registered on the basis of report lodged by the opposite party. Separate charge-sheets have been filed in the Court. 4. Petitioners seek quashing of FIR No. 38/2014 registered on the basis of information lodged on behalf of the opposite party as also the charge-sheet arising therein. Separate charge-sheets have been filed in the Court. 4. Petitioners seek quashing of FIR No. 38/2014 registered on the basis of information lodged on behalf of the opposite party as also the charge-sheet arising therein. Quashing is sought mainly on the ground that subsequent FIR, that is, FIR No. 38/2014 about the same incident was not permissible, such FIR should not have been registered, its registration is illegal and so is the charge-sheet arising therein. 5. Mr. O.P. Thakur, learned counsel for the petitioners, submitted that only one FIR can be registered in respect of an incident whereas any subsequent information lodged in this regard shall be treated as statement in terms of S. 162, Cr.P.C. Mr. Thakur submitted further that FIR No. 37/2014 about the incident was registered by the police on the basis of information lodged by the petitioners so the other FIR, that is, FER No. 38/2014 about the same incident should not have been registered and information lodged by Mohd. Din at the most could have been treated as his statement in terms of S. 162, Cr.P.C. though it would have remained open for the I.O. to arrive at any conclusion after investigation of the case and lay the charge-sheet accordingly. In support, Mr. Thakur relied upon T.T. Antony v. State of Kerala and Ors. AIR 2001 SC 2637 . 6. In the reported case relied upon by Mr. Thakur, two incidents had taken place at two different places in which police had opened fire. In that regard, two FIRs, that is, FIR Nos. 353/1994 and 354/1994 were respectively registered on 25-11-1994. Later, however, Government appointed commission of inquiry under S. 3(1) of the Commission of Inquiry Act, 1952. Government accepted report of the Commission and in the result, under the direction of the Government, FER No. 268/1997 of aforementioned Police Station was registered under S. 302, I.P.C. FIR Nos. 353/1994 and 354/1994, which were earlier registered, were closed as being false and undetected somewhere in April 1999. Three writ petitions came to be filed in the High Court of Kerala seeking quashing of FER No. 268/1997. Matter ultimately landed up before the Supreme Court. 353/1994 and 354/1994, which were earlier registered, were closed as being false and undetected somewhere in April 1999. Three writ petitions came to be filed in the High Court of Kerala seeking quashing of FER No. 268/1997. Matter ultimately landed up before the Supreme Court. Question in regard to legality of registering second FIR, that is, FIR No. 268/1997 and investigation that followed in backdrop of two earlier FERs, that is, 353/1994 and 354/1994 was raised before FERs, that is, 353/1994 and 354/1994 was raised before me Supreme Court. Supreme Court held that mere can be no second FIR and consequently mere 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. 7. Having carefully read the judgment rendered by Their Lordships in T.T. Antony's case AIR 2001 SC 2637 ) (supra) in backdrop of the fact situation of that case, I am not persuaded to agree with learned counsel for the petitioners that the law laid down by the Supreme Court would apply in a way that FER No. 38/2014 (supra) registered on the basis of information lodged on behalf of the opposing party is rendered illegal because of FIR No. 37/2014 having already been registered on the basis of information lodged on behalf of me petitioners. 8. It is neither unknown nor uncommon that in the course of an incident involving opposing parties, offences may be committed by both of them and similarly, it is neither unknown nor uncommon that informations with conflicting versions are lodged with the police by both the sides. What is required in such situation is that cases are registered on me basis of reports lodged by both the parties, investigation in both the cases is simultaneously conducted and charge-sheets, if filed by the police, are tried by the same Court (Ref. 1990 Supp SCC 145 and (2001) 2 SCC 688 ): ( AIR 2001 SC 826 ). 9. It would also not be possible to take a view that me information lodged by the opposing party was false, fabricated and factious as contended by the petitioners simply for the reason that information was later in time than the information lodged by the petitioners. 9. It would also not be possible to take a view that me information lodged by the opposing party was false, fabricated and factious as contended by the petitioners simply for the reason that information was later in time than the information lodged by the petitioners. For aforementioned, petitioners' plea that registration of FIR No. 38/2014 is illegal or based on false, fabricated and factious allegations is not sustainable and viewed thus, no case for quashing the FIR is made out and, therefore, this petition is dismissed as without any merit.