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2020 DIGILAW 712 (JK)

Ishtiaq Ahmed v. UT of J&K

2020-12-29

SANJAY DHAR

body2020
JUDGMENT : Sanjay Dhar, J. 1. Through the medium of instant petition filed under Section 482 of Cr.P.C., the petitioners are seeking quashment of FIR bearing No. 0110/2019 dated 15.06.2019 for offences under Sections 451/354/294/341/323/147/504/109 RPC registered with Police Station, Thanamandi, District Rajouri. 2. It is the case of petitioners that prior to lodging of impugned FIR by respondent No. 2 against them, FIR bearing No. 0096/2019 for offences under Sections 307/453/382/447/147/148 RPC was lodged by petitioner No. 1 against respondent No. 2 and her associates who happen to be the neighbourers and relatives of the petitioners. It is averred that the petitioners and the complainant party have a long standing property dispute and on account of this dispute, on 02.06.2019 at about 5:00 pm, respondent No. 2 and her associates launched an attack upon the petitioners thereby causing serious injuries to some of them and damage to their property. On this basis, FIR bearing No. 0096/2019 was registered. A chargesheet in pursuance of aforesaid FIR is stated to be pending against the complainant party before the Court of learned Sessions Judge Rajouri. It is alleged that, as a counter blast to this FIR, the impugned FIR came to be lodged by the complainant party against the petitioners which is absolutely false and frivolous. 3. Respondent No. 1, SHO Police Station, Thanamandi has filed a status report in which it has been stated that, on 02.06.2019, a written application of respondent No. 2 was received by the police, that had been endorsed to the police by the Judicial Magistrate 1st Class, Kotranka, and on the basis of the said complaint, impugned FIR came to be registered. It is averred that during investigation of the case, the statements of witnesses under Section 161 Cr.P.C. were recorded and it was found that the offences under Sections 341/354/294/323/147/504 RPC stand established against the petitioners herein. Respondent No. 1 has also produced xerox copy of the case diary. 4. It is averred that during investigation of the case, the statements of witnesses under Section 161 Cr.P.C. were recorded and it was found that the offences under Sections 341/354/294/323/147/504 RPC stand established against the petitioners herein. Respondent No. 1 has also produced xerox copy of the case diary. 4. The complainant/Respondent No. 2 has also filed her reply to the petition in which she has reiterated the allegations made by her in the impugned FIR against the petitioners, according to which, on 02.06.2019 at about 5:00 pm, the complainant/respondent No. 2, while on way to her home, was wrongfully restrained by the petitioners No. 1 & 2, who caught hold of her breasts to outrage her modesty, whereas the other petitioners launched an attack upon the complainant/respondent No. 2, her brother and mother with axes and lathies. It has been further averred that after investigation of the case, the offences mentioned in the impugned FIR stand established against the petitioners, as such, the present petition deserves to be dismissed. 5. I have heard learned counsel for the parties and perused the material on record. 6. It has been vehemently contended by learned counsel for the petitioners that the impugned FIR is a counter blast to the FIR lodged by the petitioners against the complainant party. According to the learned counsel, a chargesheet arising out of the aforesaid FIR stands already produced before the Court and on account of a long standing property dispute, the complainant party has lodged the impugned FIR with a view to wreak vengeance upon the petitioners. The learned counsel would contend that in the case of State of Haryana and ors. vs. Ch. Bhajan Lal and ors., 1992 AIR 604, the Supreme Court has clearly stated that in a case where the prosecution has also been launched only with an intention to wreak vengeance against the accused, the same deserves to be quashed. Reliance has been placed upon the judgment of the Supreme Court in the case of Ahmad Ali Quraishi and ors. vs. The State of Uttar Pradesh and ors, AIR 2020 SC 788 . 7. It has further been contended by learned counsel for the petitioners that, in the instant case, two FIRs with regard to same occurrence have been registered by respondent No. 1, which is impermissible in law. vs. The State of Uttar Pradesh and ors, AIR 2020 SC 788 . 7. It has further been contended by learned counsel for the petitioners that, in the instant case, two FIRs with regard to same occurrence have been registered by respondent No. 1, which is impermissible in law. In this regard, reliance has been placed upon the judgment of the Supreme Court in the case of Babubhai vs. State of Gujrat and ors., 2010 (12) SCC 254 . 8. Per contra, learned counsel for respondent No. 1 has contended that, from the investigation of the impugned FIR conducted so far, most of the allegations made by respondent No. 2/complainant in the impugned FIR against the petitioners stand substantiated by the statements of witnesses recorded under Section 161 Cr.P.C. and other material collected during investigation of the case, therefore, the criminal proceedings against the petitioners cannot be stifled at this stage. 9. So far as the contention regarding prohibition for lodging of two FIRs relating to the same occurrence is concerned, it is correct that lodgment of two FIRs in respect of one and the same incident is not permissible. However, the rival versions in respect of the same incident for the purpose of lodging two FIRs is not prohibited. The Supreme Court, in the case of Upkar Singh vs. Ved Parkash and ors., (2004) 13 SCC 292 , has clearly stated that prohibition of lodging of second FIR does not cover the allegations made by the accused in the first FIR alleging a different version of same incident. The Court further went on to hold that rival versions in respect of same incident do take different shape and in that event lodgment of two FIRs is permissible. What is impermissible is lodging of second FIR by the same complainant in respect of the same incident. The aforesaid position of law has been reiterated and reaffirmed by the Supreme Court in the cases of Surender Kaushik vs. State of U.P. and ors, (2013) 5 SCC 148 and P. Sreekumar vs. State of Kerala and ors, (2018) 4 SCC 579 . Even in Babubhai's case (supra) relied upon by the petitioners, the Supreme Court has clearly stated that in respect of same incident, if the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted. 10. Even in Babubhai's case (supra) relied upon by the petitioners, the Supreme Court has clearly stated that in respect of same incident, if the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted. 10. This Court, in the case of Nek Mohd. and ors. vs. State of J&K, 2015 (3) JKJ 607 [HC] had an occasion to deal with the aforesaid proposition of law and while relying upon the judgment of Supreme Court in the case of Sudhir and ors. vs. State of M.P. 2001 (2) SCC 688 , the Court observed as under: "9. 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 the 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." 11. From the above, it is clear that two FIRs lodged by the rival parties regarding the same incident can be registered. In the instant case, according to the impugned FIR, an attack was launched by the petitioners against the complainant party on 02.06.2019 at 5:00 pm and the place of occurrence is Dadasan Bala, Tehsil Thanamandi. So far as the FIR lodged by the petitioners against the complainant party is concerned i.e. FIR 0096/2019, the place of occurrence is same and the date and time of occurrence is also identical. According to the impugned FIR, the assailants happen to be the petitioners herein, whereas according to FIR No. 0096/2020 lodged by the petitioners, the assailants happen to be respondent No. 2 and her associates. Thus, there are two different versions of the same occurrence given by the rival parties. In view of the legal position discussed hereinbefore, lodging of impugned FIR by respondent No. 2 by giving her version of the occurrence is not impermissible in law. 12. The other contention of the petitioners is that the impugned FIR is actuated by malice and vengeance on account of a long standing property dispute between the parties. In view of the legal position discussed hereinbefore, lodging of impugned FIR by respondent No. 2 by giving her version of the occurrence is not impermissible in law. 12. The other contention of the petitioners is that the impugned FIR is actuated by malice and vengeance on account of a long standing property dispute between the parties. It does appear from the material on record that there is a property dispute going on between the parties and FIRs and counter FIRs have been lodged by the parties against each other, but the same cannot be the sole criteria for quashing the criminal proceedings. In the instant case, the case diary shows that during investigation of the case, the allegations made in the FIR to a large extent stand substantiated by the material collected by the investigating agency. Therefore, merely because there was a long standing enmity between the parties, it may not be appropriate for this Court to quash the criminal proceedings against the petitioners as it is not open to this Court to analyse the material collected by the investigating agency during investigation of the case in these proceedings. The Supreme Court in the case of State of Orissa and another vs. Saroj Kumar Sahoo, (2005) 8 Supreme 464 , has clearly stated that the allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. The Court has gone on to state that when an information is lodged at the Police Station and an offence is registered, then, the mala fides of the informant would be of secondary importance. 13. So far as reliance placed by learned counsel for the petitioners upon the judgment of Supreme Court in the case of Ahmad Ali Quraishi (supra) to canvas his point that where allegations in the FIR are actuated by malice and are aimed at wreaking vengeance upon the accused, the criminal proceedings deserve to be quashed, is concerned, the ratio laid down in the said Judgment may not apply to the facts of the instant case. In the case before the Supreme Court, there was an enquiry report, according to which, the allegations levelled by the complainant against the accused was found to be unsubstantiated. In the case before the Supreme Court, there was an enquiry report, according to which, the allegations levelled by the complainant against the accused was found to be unsubstantiated. It is, on basis of the said enquiry report, coupled with long standing enmity between the parties that the Supreme Court held that where the proceedings are maliciously initiated with an ulterior motive for wreaking vengeance upon the accused due to private and personal grudge, the same deserve to be quashed. However, the facts of the instant case are quite distinct, inasmuch as there is no such enquiry report before this Court and, in fact, the investigation conducted so far discloses that the allegations made in the impugned FIR are substantiated. 14. For the foregoing reasons, I do not find any merit in this petition. The same along with connected application is dismissed, accordingly. Interim directions dated 12.11.2020 shall stand vacated.