Triveni Upadhyay & Others vs State Of U.P. & Another
2018 Latest Caselaw 1730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 24
 

 
Case :- APPLICATION U/S 482 No. - 4569 of 2003
 

 
Applicant :- Triveni Upadhyay & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Ashwini Kumar Awasthi,Manish Tiwary
 
Counsel for Opposite Party :- Govt. Advocate,O.P.Tiwari
 

 
Hon'ble Yashwant Varma,J.

This application under Section 482 Cr.P.C. seeks quashing of the order dated 3 June 2003 passed in Criminal Revision No. 103 of 2003 Badri Narayan Tewari Vs. State of U.P. The seventh applicant was married to the daughter of the opposite party No. 2. Upon relations souring, the daughter of the opposite party No. 2 consequent to a failure on the part of the police authorities to register an FIR filed an application under Section 156(3) Cr.P.C. against the applicants alleging commission of offences under Sections 147,308,323,325,504,506,498A IPC read with Section 3/4 of the Dowry Prohibition Act. On the said complaint, the Magistrate by an order dated 8 April 2003 directed the police authorities to register an FIR and initiate investigation.

The challenge laid by the applicants to this order failed with a learned Judge of this Court dismissing their application under Section 482 No. 1185 of 2003 on 25 April 2003. The Opposite party No. 2 in the meanwhile instituted a separate complaint under Section 156 (3) alleging commission of offences under Sections 147,323, 325,504 and 506 IPC. The Magistrate by an order dated 10 April 2003 dismissed this application holding that the daughter of the opposite party No. 2 had already instituted a complaint pursuant to which an FIR had been directed to be registered. He accordingly held that in respect of the same incident two separate cases cannot possibly be registered. This order of the Magistrate was challenged by the opposite party No. 2 in revision bearing Criminal Revision No. 103 of 2003. The revisional Court in terms of the order impugned has taken the view that the Magistrate clearly erred in rejecting the complaint of the opposite party No. 2. The revisional Court held that the subsequent complaint was in essence a "cross version" and that therefore, the Magistrate had clearly erred in holding that both complaints were identical and related to the same incident. It is in the above backdrop that the instant criminal revision came to be filed.

Before this Court, it was contended that a perusal of the complaint allegations would establish that the initial application made by the daughter of the opposite party No. 2 clearly referred to the incident stated to have occurred on 15 March 2003. According to the learned counsel for the revisionist the subsequent complaint of the opposite party No. 2 relating solely to the incident dated 15 March 2003 would clearly fall within the specie of an identical second complaint which was rightly rejected by the Magistrate. According to the learned counsel there cannot be successive or separate complaints in respect of the same incident in terms of the provisions of Section 154 CrPC. Learned counsel would submit that the reporting of a crime or the commission of an offence under Section 154 must necessarily be confined to the first of such complaints and it is the initial complaint alone which would warrant registration and investigation. The submission in essence is based upon the principles enunciated by two learned Judges of the Supreme Court in T.T. Antony Vs. State of Kerala1 To buttress his submission, the learned counsel has referred to the following principles as culled out by the Supreme Court and embodied in paragraphs 19, 20 and 27 of the report. In order to appreciate the submissions advanced, the above mentioned paragraphs are extracted hereunder:

"19. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports: this is the import of sub-section (8) of Section 173 Cr.P.C.

20. From the above discussion it follows that under the scheme of the provisions of Sections 154 155 156 157 162 169 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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 an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported 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 Cr.P.C.

27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. 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 have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway 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 Article 226/227 of the Constitution." (emphasis supplied)

Learned AGA on the other hand has contended that the revisional Court rightly came to conclude that the complaint of the opposite party No. 2 was in the nature of a cross version and that this complaint could not be described or viewed as being identical to that instituted by his daughter. The learned AGA also stressed on the fact that the complaints were not instituted by the same individual and that both related to crimes committed against two distinct and separate persons. In view of the above, it was submitted that the principles laid down in TT Antony would not be applicable in the facts of the present case.

In order to deal with the rival submissions advanced, this Court firstly deems it apposite to extract the relevant parts of the complaints made by the opposite party No. 2 and his daughter. Since the submissions advanced turn upon the purported identical nature of the allegations made in respect of incident which took place on 15 March 2003, the Court deems it appropriate to reproduce the complaint allegations insofar as they relate to this incident only. In the complaint laid by the daughter of the opposite party No. 2, the happenings of 15 March 2003 were described as under.

"3. यह कि दिनांक 13.3.03 को प्रार्थिनी के रिश्तेदार भुनेश्वर चौबे नि. जेगुरी थाना शहाबगंज जिला चंदौली प्रार्थिनी से मिलने प्रार्थिनी के ससुराल ग्राम भूसी आये तो विपक्षीगण प्रार्थिनी से मिलने नहीं दिया जब प्रार्थिनी ने जल्दबाजी में एक पत्र लिखकर छत के माध्यम से उनके पास फेक दिया जिसमें प्रार्थिनी ने अपने पिता व चाचा से अपने प्राणो की गुहार की थी उक्त पत्र प्राप्त होने के पश्चात प्रार्थिनी के पिता दिनांक 15.3.03 को अपने साथ गांव के महेंद्र पाल सिंह व रिश्तेदार भुनेश्वर चौबे को लेकर प्रार्थिनी के ससुराल ग्राम भूसी आये जहाँ विपक्षीगण को समझने बुझाने का प्रयास किया तो विपक्षीगण सभी लोगो पर बहुत नाराज हुए तथा उनसे गली गलौज करते हुए प्रार्थिनी के पिता को लाठियों से मारा पीटा व प्रार्थिनी को मुलाकात भी करने नहीं दिया तथा प्रार्थिनी तो एक कमरे में बंद कर दिया ।

4. यह की दिनांक 15-3-03 को ही रात में करीब 8 बजे रात को विपक्षीगण श्याम नारायण व सास गुलजारी देवी ने यह कहकर ललकारा कि यह साली अपने पिता से अपने पति को क्लिनिक खोलने हेतु एक लाख रुपया जो मांगा जा रहा है नहीं दिला रही है तथा अपने बाप को बुलाकर शिकायत कर रही है इसे जान से मारकर ख़त्म कर दो इस पर हंसमणि ने प्रार्थिनी का बाल पकड़ कर खींचते हुआ आंगन में ले आई जहाँ पर सीता देवी घनश्याम नारायण व अशोक ने हंसमणि के साथ प्रार्थिनी को आंगन में पटक कर जान से मारने के नियत से लात घुसे से बुरी तरह से मारा पीटा पति घनश्याम व जेठान हंसमणि प्रार्थनी के छाती पर लातो से मारा जिससे प्रार्थनी के सीना में काफी चोटें आयी उस दौरान ससुर त्रिवेणी भी मौके पर मौजूद थे। तथा अन्य विपक्षीगण को मारने पीटने के लिए ललकार रहे थे विपक्षीगण के मारने से प्रार्थिनी को रूक रूककर उल्टी व के साथ मुँह से खून भी गिरने लगा तथा चक्कर आने से प्रार्थिनी अचेत भी हो जाती थी किन्तु विपक्षीगण ने कोई ध्यान नहीं दिया तथा उसे मरने के लिए छोड़ दिया विपक्षीगण इस बात का भी ताना मारते थे कि साली अपने पिता से कहकर पैसा भी नहीं दिला रही है उल्टे शिकायत कर पंचायत करा रही है अब इसे किसी न किसी दिन जलाकर मार दिया जायेगा ।

5- यह कि दिनांक 25.3.03 ई को प्रार्थनी के चाचा राम नारायण तिवारी अपने साथ रिश्तेदारों रणजीत पांडेय, राकेश पांडेय, ग्राम सिलौटा थाना धीना जिला चंदौली जागेश्वर पांडेय निवासी लटाओं तथा ग्राम भूसी के विजय नारायण उपाध्याय को साथ लेकर भूसी आये तथा प्रार्थिनी के विदाई हेतु कहा विपक्षीगण ने उन लोगो को भी माँ बहन कि गाली देकर अपमानित किया तथा प्रार्थिनी को उसके सारे जेवरात रखकर उन्ही कपडे में घर से बाहर निकाल दिया तब प्रार्थिनी ने अपने चाचा से सारी बातें बताई तब प्रार्थिनी के चाचा प्रार्थिनी को लेकर थाना स्थानीय गए जहाँ प्रार्थिनी कि कोइ रिपोर्ट नहीं लिखी गयी तत्पश्चात प्रार्थिनी का चाचा प्रार्थिनी को लेकर प्राथमिक स्वास्थ्य केंद्र शहाबगंज ले गए जहाँ डाक्टर साहब ने प्रार्थिनी का डाक्टरी रिपोर्ट तैयार किया एवं प्राथिमिक उपचार करने के पश्चात् चोट कि गंभीरता को देखते हुए एक्सरे हेतु रेफर कर दिया तो प्रार्थिनी का एक्स रे एस. एस. पी. जी. हॉस्पिटल वाराणसी में दिनांक 26.6.03 ई को हुआ एक्स रे में प्रार्थिनी के छाती कि दाए बाए छाती कि हड्डी व बाएं पैर की हड्डी टूटी पाई प्रार्थिनी ने इस सम्बन्ध में लिखित प्रार्थना पत्र एस. पी. चंदौली को भी दिया किन्तु आज तक थाना स्थानीय द्वारा कोई कार्यवाही नहीं की गई ।

6 - यह कि विपक्षीगण द्वारा किया गया यह कार्य धारा 147, 308, 323, 325, 504, 506, 498ए. आई. पी. सी. एवं 3 /4 द. प. अधि. के अंतर्गत दंडनीय अपराध है जो संज्ञेय प्रकृति का है ।"

The opposite party No. 2 in his complaint narrated the events which occurred on 15 March 2003 in the following terms:-

"4 - यह कि दिनांक 13.3.03 ई को प्रार्थी का रिश्तेदार भुनेश्वर चौबे पुत्र घनश्याम चौबे निवासी जेगुरी थाना शहाबगंज प्रार्थी कि पुत्री से मिलने ग्राम भूसी गए तो प्रतिवादीगण प्रार्थी की लड़की से उन्हें मिलने नहीं दिए तो प्रार्थी कि पुत्री ने एक पत्र जल्दबाजी में लिखकर चोरी से उनके पास फेक दिया उक्त पत्र को भुनेश्वर चौबे ने हम प्रार्थी को दिया जिसमें प्रार्थी कि पुत्री ने अपने प्राणो कि गुहार की थी दिनांक 15.3.03 को प्रार्थी उनके साथ अपने गांव के ही महेंद्र पाल सिंह को लेकर ग्राम भूसी गया तथा पुत्री द्वारा की गयी बातों की शिकायत प्रतिवादीगण घनश्याम, श्यामनारायण, अशोक व त्रिवेणी से किया इस पर वो लोग बहुत नाराज हुए तथा कहा सुनी होने लगी थोड़े देर घर के भीतर बाहर होने के पश्चात् समय करीब 5 बजे सायंकाल प्रतिवादी त्रिवेणी के ललकारने पर कि मारो साले को बहुत शिकायत करने चला है विपक्षी श्यामनारायण घनश्याम अशोक प्रार्थी को लाठियों से मारने लगे जब साथ गए गवाहान व कहा सुनी के दौरान मौके पर पहुंचे भूसी के ही वीरेंद्र ने इन लोगो की लाठियों को पकड़ ली तो लात घूंसे से मारने लगे इस दौरान प्रार्थी कि लड़की विभा घर में से निकलकर प्रार्थी को बचाना चाही तो उसकी सास मुलजारी जेठान हंसमणि, उसे खींचकर घर में बंद कर दिया और छत पर चढ़कर एक अन्य महिला के साथ ईंट पत्थर से प्रार्थी को मारा घटना को गांव के तमाम लोगो ने देखा व साथ गए लोगो के साथ बीच बचाव किया जिससे प्रार्थी की जान बची विपक्षीगण साथ गए लोगो को भी गाली गुप्ता व मारने पीटने व जान मारने कि धमकियाँ दे रहे थे प्रतिवादीगण इस बात की धमकी दे रहे थे कि साला माधड चोद एक तो दहेज़ भी कम दिया दूसरे शिकायत करने चला है आज तो बच गए फिर दरवाजे चढ़ने कि कोशिश किया तो जान से मारकर खत्म कर देंगे प्रतिवादीगण के मारने से प्रार्थी को तमाम जाहिरा व अंदरुनी चोटें आयी जिसकी शिकायत प्रार्थी ने उसी दिन थाना स्थानीय पर किया किन्तु प्रार्थी की कोई रिपोर्ट नहीं लिखी गयी बल्कि दीवान जी ने कहा लड़की का मामला है समझ बूझ कर कार्य कीजिये बादहू रात में प्रार्थी की पुत्री को भी घर में प्रतिवादीगण ने मारा पीटा ।"

The issue which therefore, falls for determination is whether both the complaints were identical and would fall foul of the principles enunciated in T.T. Antony.

Dealing with the submission with regard to two FIRs being registered in respect of the same offence, the Supreme Court in T.T. Antony held that it is only the earliest of the first information received by the police authorities in regard to the commission of a cognizable offence which would satisfy the requirements of Section 154 Cr.P.C. Recognizing this basic postulate, the Supreme Court proceeded to hold that there could not be a second FIR nor could there be a fresh investigation in receipt of subsequent information in respect of the same cognizable offence/occurrence or incident. This was further explained that once, the earliest FIR was received the investigation would clearly be carried out in respect of the offence as a whole thus enabling the authorities to cover all aspects of the cognizable offence/ocurrence/incident and that no fresh FIR was liable to be registered. The interpretation accorded to section 154 CrPC by the Supreme Court also rested upon the provisions of Section 173 Cr.P.C. which empowers the investigating agency to submit one or more reports in respect of the commission of the crime. On a constitutional plane, the Supreme Court further noted that subjecting a citizen to fresh investigation repeatedly in respect of the same incident would clearly be violative of Articles 19 and 20 of the Constitution. It proceeded to observe that bearing the above constitutional provisions in mind the registration of successive FIRs would clearly be a case of abuse of the power of investigation.

Having noted the fundamental principles which must govern the issues raised before this Court, it would also be pertinent to recognise the true ratio of the decision in T.T. Antony as also to explore whether the principles elucidated therein brook of any exception. The decision in T.T. Antony fell for consideration in various subsequent judgments of the Supreme Court. One of the issues which was raised was whether T.T. Antony and the contours of Section 154 Cr.P.C. as recognised and declared therein would also cover a situation of a cross case or a cross version. Dealing with the said issue, the Supreme Court in Upkar Singh vs Ved Prakash2 clearly and in unequivocal terms turned down the contention that T.T. Antony would prohibit the registration of a second FIR if it be in the nature of a cross case or a counter claim. Dealing with similar challenges and the application of the principles enunciated in T.T. Antony, the Supreme Court in subsequent judgments formulated two additional tests which must be shown to be attracted in order to fault a second complaint or FIR. These were the "consequence" and "sameness" tests. These principles were noticed in its decision in Anju Chaudhary Vs. State of U.P3 and in order to appreciate the contents of the two tests as formulated, the Court reproduces the following parts of the decisions referred to above:-

"14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, reexamination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. [Ref. Rita Nag v. State of West Bengal (2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 of the same date).

15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case."

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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. 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 v. State of Gujarat (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."

In essence the "consequence test" postulates that if the subsequent FIR relates to an occurrence or crime which is a direct consequence to the allegations levelled in the initial report then the second would clearly not be maintainable. Elaborating on the principles of "sameness", it was observed that two FIRs can be said to fall within the ambit of this test provided it is established that the subsequent report is in respect of the same incident or offence and is not based upon distinct and different facts. In order to understand whether a subsequent report was liable to be quashed on the application of the doctrine of "sameness", the Supreme Court held that the Court would have to weigh and consider whether the ambit and scope of an investigation in respect of the two FIRs would be identical or not. To put it differently, the enquiry which would have to be undertaken would be to consider whether the scope of investigation and enquiry liable to be undertaken pursuant to the registration of the second report would be identical in all respects. It was also recognised that the sameness principles must be accorded a restricted view.

In order to lend completeness to the discussion on the subject the Court only notes a recent decision rendered by the Supreme Court in P. Sreekumar vs. State of Kerala and Ors4 where the following pertinent observations were made:

"29. The aforesaid principle was reiterated by this Court (Two Judge Bench) in Surender Kaushik & Ors. vs. State of U.P., (2013) 5 SCC 148 in the following words:

"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."

30. Keeping the aforesaid principle of law in mind when we examine the facts of the case at hand, we find that the second FIR filed by the appellant against respondent No.3 though related to the same incident for which the first FIR was filed by respondent No.2 against the appellant, respondent No.3 and three Bank officials, yet the second FIR being in the nature of a counter-complaint against 13 respondent No.3 was legally maintainable and could be entertained for being tried on its merits.

31. In other words, there is no prohibition in law to file the second FIR and once it is filed, such FIR is capable of being taken note of and tried on merits in accordance with law.

32. It is for the reasons that firstly, the second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Such was not the case here; Second, it was filed by the appellant as a counter-complaint against respondent No.3; Third, the first FIR was against five persons based on one set of allegations whereas the second FIR was based on the allegations different from the allegations made in the first FIR; and Lastly, the High Court while quashing the second FIR/charge-sheet did not examine the issue arising in the case in the light of law laid down by this Court in two aforementioned decisions of this Court in the cases of Upkar Singh and Surender Kaushik and simply referred three decisions of this Court mentioned above wherein this Court has laid down general principle of law relating to exercise of inherent powers under Section 482 of the Code."

Having noticed the legal position which must govern the matter at hand, the first exercise which the Court must necessarily undertake is to note the scope and content of the two complaints in question. As is evident from the allegations levelled by the daughter of the opposite party no. 2, the same were with respect to demand of dowry and her ill treatment in her marital home. The allegations essentially related to the various occasions when she was assaulted, ill treated and abused by the accused named therein. The complaint filed by the opposite party no. 2 intrinsically was in respect of the incident which is alleged to have occurred on 15 March 2003. A comparison of the two versions of the incident stated to have occurred on 15 March 2003 establishes that they are not identical. The second complaint namely that instituted by the opposite party no. 2 was not a complaint by the same person. It was essentially a complaint of a crime committed against the opposite party no. 2. Fundamentally it was in the nature of a counter complaint against the applicants.

More importantly, the Court must test the correctness of the submissions advanced by posing to itself the question whether the scope and content of investigation in respect of the two complaints would be identical. On a plain reading of the complaints in question it is evident that the scope of enquiry of the two would not be identical. While the first complaint alleges abuse and persistent ill treatment connected with demands of dowry, the second complaint is essentially restricted to the assault on the opposite party on the fateful day. The scope and content of the enquiries to be initiated on the two complaints cannot be said to be identical. The mere fact that there is a passing reference of the crime committed on 15 March 2003 in the complaint of the daughter cannot be a ground to hold that the second complaint was barred under section 154 Cr.PC. On a strict application of the doctrine of "sameness" as formulated and which is clearly applicable, the Court finds itself unable to hold that the complaint by the opposite party no. 2 was not maintainable in light of the principles elucidated in T.T. Anthony.

Accordingly this application is dismissed. The order of the revisional Court merits no interference. Consequently it shall be open to the respondents to proceed in the matter in light of the directions formulated by the revisional court.

Order Date :- 27.7.2018

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