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2021 DIGILAW 551 (JK)

Govind Singh v. Union Territory of J&K

2021-10-13

SANJEEV KUMAR

body2021
JUDGMENT : 1. The petitioner is aggrieved of and has challenged order dated 9th August, 2021 passed by the Judicial Magistrate 1st Class (Munsiff), Akhnoor, whereby complaint filed by the petitioner under Section 156(3) of the Code of Criminal Procedure for registration of case against accused persons has been dismissed. 2. The impugned order has been assailed by the petitioner on the ground that the learned Magistrate has failed to appreciate the position of law, as was enunciated by a three-Judge Bench of the Supreme Court in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292 wherein it was held that an accused is entitled to lodge counter complaint, if he has a different version of the same incident and in case of refusal by the police to register such counter FIR, accused can seek direction from the concerned Judicial Magistrate under Section 156(3) Cr.P.C. The impugned order is also assailed on the ground that the learned Magistrate has exceeded its jurisdiction as it entered into a roving enquiry to find out the plausibility of the allegations. 3. Having heard learned counsel for the parties and perused the record, I am of the view that the submissions made by learned counsel for the petitioner are well merited. 4. It is true that with regard to an incident that occurred on 29th June, 2021 at about 5.30/6.30 p.m. involving petitioner and his mother on one side and Mohan Singh, Sohan Singh sons of Kabal Singh, Pawan Singh S/o Puran Singh, Sagar Singh S/o Pawan Singh, Manju Singh and Sanju Singh Sons of Sohan Singh, on the other side. The other party i.e. Mohan Singh and others were quick to report matter to the police and accordingly FIR No. 45/2021 for offences under Sections 307/341/323 RPC was registered in the Police Station, Khour against the petitioner and other family members. It is alleged by the petitioner that, as a matter of fact, on that day it is the other party i.e. Mohan Singh, who attacked the petitioner and his mother and badly injured them. They even went to the hospital for medical aid, where the doctor attending the petitioner and his mother registered it as a Medico Legal Case (MLC). It is alleged by the petitioner that, as a matter of fact, on that day it is the other party i.e. Mohan Singh, who attacked the petitioner and his mother and badly injured them. They even went to the hospital for medical aid, where the doctor attending the petitioner and his mother registered it as a Medico Legal Case (MLC). The petitioner also claimed that he along with his mother approached the police for registration of the FIR but the police of Police Station, Khour flatly refused to register the FIR, which constrained the petitioner to approach the Court of learned Judicial Magistrate 1st Class, Akhnoor under Section 156(3) Cr.P.C. for giving direction to the Station House Office, Police Station, Khour to register FIR against the said persons. 5. Learned Judicial Magistrate, after obtaining report from the concerned Police Station, came to the conclusion that there was no truth in the allegations of the petitioner and that the application moved by the petitioner under Section 156(3) Cr.P.C. was only by way of counterblast to FIR No. 45/2021 registered against the petitioner and his other family members. It is on these premises, application was dismissed by the learned Magistrate. 6. It appears that the judgment rendered by the Supreme Court in the case of Upkar Singh (supra) was not brought to the notice of the learned Magistrate, which, unequivocally lays down a principle of law that in regard to one single incident there could be a counter complaint/FIR provided the accused in such case as a different version of the said incident. In the case of Upkar Singh (supra), a three-Judge Bench of the Supreme Court was hearing an appeal on reference, when a Division Bench of the Supreme Court doubted the correctness of the earlier judgment of the Supreme Court rendered in the case of T.T. Antony v. State of Kerala and others (2001) 6 SCC 181 . The three-Judge Bench of the Supreme Court after surveying the case law on the point in paragraph No. 24 did not accept the principle of law laid down in T.T. Antony's case (supra) and held that in regard to same incident a counter complaint or FIR by the accused was permissible provided he had a different version of the same incident. 7. 7. In the instant case, indisputably, the incident is same but the petitioner, who is accused in FIR No.45/2021, has a different version of the incident to offer. It is the version of the petitioner that actually it was the other party, who attacked him and his mother and severely injured them and lodged the first FIR. 8. Be that as it may, in view of the legal position set at rest by the Supreme Court in the case of Upkar Singh (supra), this Court has no option but to accept the contention of learned counsel for the petitioner that the learned Magistrate could not have rejected his application filed under Section 156(3) Cr.P.C. nor the Judicial Magistrate could have at this stage gone into the merits of the allegations. Undoubtedly, the allegations contained in the complaint moved by the petitioner do disclose commission of cognizable offence, that itself is good enough to direct the Police to register FIR against the accused. 9. For the foregoing reasons, this petition is allowed. The order impugned is set aside. Station House Office, Police Station, Khour is directed to register FIR in terms of the allegations contained in the application filed by the petitioner before the Judicial Magistrate 1st Class (Munsiff), Akhnoor under Section 156(3) Cr.P.C. The Incharge Police Station, Khour shall entrust investigation of the case also to the same Investigating Officer, who is investigating FIR No. 45/2021 and both the FIRs shall be investigated together.