Beekki Verma vs State Of U.P. And Another
2021 Latest Caselaw 814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 

 
Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 19490 of 2020
 

 
Applicant :- Beekki Verma
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajendra Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Sri Rajendra Kumar, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General alongwith Sri Ratnendu Kumar Singh, learned Additional Government Advocate appearing for the State-opposite party.

2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the charge sheet no. 01 dated 28.8.2018 and summoning order dated 6.1.2020 as well as entire proceedings of Case No. 58 of 2020 (State vs. Beekki) arising out of Case Crime No. 256 of 2018, under Sections 41, 411, 413 IPC, P.S. Kotwali, District Ghazipur, pending in the court of Chief Judicial Magistrate, Ghazipur.

3. Counsel for the applicant has sought to contend that in respect of the same incident, an earlier FIR dated 29.3.2018 was lodged under Section 392 IPC, P.S. Kotwali, District Ghazipur, which was registered as Case Crime No. 120 of 2018. It is submitted that the present criminal proceedings having been initiated pursuant to a subsequent FIR relating to the same incident, the proceedings are vitiated and the applicant has been falsely implicated by showing false recovery against him.

4. Learned Additional Advocate General appearing for the State-opposite party, has controverted the aforesaid assertion by pointing out that the earlier FIR dated 29.3.2018 was lodged under Section 392 I.P.C. by one Krishnawati Devi-first informant against unnamed accused. The allegations in the FIR are in respect of an incident stated to have occurred on 29.3.2018 which relate to chain snatching.

5. It is submitted that the FIR, which forms the genesis of the present criminal case is of 26.6.2018, lodged under Sections 41, 411 and 413 I.P.C., P.S. Kotwali, District Ghazipur. The first informant in the present FIR is one Divya Prakash Singh, Sub-inspector, Police Station- Kotwali, District Ghazipur, and it relates to an incident dated 25.6.2018, wherein the applicant and one other person have been named as accused. The FIR version relates to recovery of certain stolen property said to have been found in the possession of the accused which is stated to have been retained by the said persons by theft. It is submitted that the incident dated 29.3.2018, regarding which, the earlier FIR had been lodged, is referred to as one of the several acts of theft relating to which the stolen property had been recovered from the accused.

6. The aforementioned question as to when a second FIR was permissible, was subject matter of consideration in Babubhai vs. State of Gujarat and others1, wherein it was held that in case of a subsequent FIR, the Court has to examine the facts and circumstances giving rise to both the FIRs and the 'test of sameness' is to be applied to find out whether both the FIRs relate to the same incident in respect of same occurrence or in regard to the incident which are two or more parts of the same transaction, and in case where the version in the second FIR is different and they are in respect of two different incidents, the second FIR is permissible. It was held as follows :-

"21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. "

7. The permissibility of second second FIR was subject matter of consideration in Nirmal Singh Kahlon vs. State of Punjab2, wherein referring to an earlier decision in Ram Lal Narang vs. State (Delhi Admn.)3, it was opined that the second FIR would be maintainable where new discovery is made on factual foundations about a larger conspiracy. It was stated thus :-

"67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."

8. The question as to when registration of more than one FIR was permissible, again came up for consideration in the decision in Anju Chaudhary vs. State of Uttar Pradesh and another4, and it was held that the said question would be a mixed question of law and facts and the test of 'sameness' would have to be applied. Referring to the earlier decision in T.T. Antony vs. State of Kerala5 and reiterating that second FIR in respect of same offence or incident forming part of same transaction as contained in the first FIR, is not permissible, it was held that where the offence does not fall within the ambit of the first FIR, the second FIR would be permissible. The observations made in this regard in the decision of Anju Chaudhary (supra) are as follows :-

"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 straitjacket 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."

9. A similar view was taken in an earlier decision in Rameshchandra Nandlal Parikh vs. State of Gujarat and another6, wherein the judgement of the High Court declining to exercise its powers under Section 482 Cr.P.C. and refusing to quash the subsequent complaints-FIRs for the reason that the subsequent complaints were not in relation to same offence or occurrence, was upheld, and it was stated as follows :-

"14. There is a further distinction in that while First C.R. No. 67 of 2001 pertained to cases concerning one Ketan Parikh and entities associated with him in the crime, the subsequent complaints pertained to other parties. Further, the FIR being investigated pertained only to criminal acts relating to the Mandvi Branch (Mumbai), while the subsequent complaints being investigated by the State Police pertained to criminal acts at the Shahibaug (Ahmedabad) branch of the Bank. In our view, the distinctions drawn by the High Court are fully justified. The High Court was right in observing that the FIRs, which were under challenge before it, were regarding independent and distinct offences. Hence, the FIRs could not be prohibited on the ground that some other FIR had been filed against the petitioner in respect of other allegations made against the petitioner.

15. Moreover, the High Court was correctly cognizant of limitations while exercising its powers under Section 482 CrPC, which should not in any event, be exercised lightly. Reading the impugned judgment of the High Court as a whole, we are satisfied that there is no scope for interference by us. The High Court was justified in declining to exercise its powers under Section 482 CrPC and in refusing to interfere with the orders passed by the learned Chief Metropolitan Magistrate. Finally, considering the nature of the allegations involved and the facts and circumstances of the present case, we too are not inclined to exercise our extraordinary powers under Article 136 of the Constitution to interfere."

10. In Awadesh Kumar Jha and others vs. State of Bihar7, while again reiterating that there can be no second FIR in respect of same offence or occurrence or same transaction giving rise to one or more offences, it was held that where the substance of the allegation in the second FIR is different from the first FIR and the same is related to a different transaction, the second FIR would be permissible.

11. A view that a second FIR in respect of an offence which was different and distinct was permissible has again been reiterated in Pattu Rajan vs. State of Tamil Nadu8.

12. In a recent decision in Prem Chand Singh vs. State of Uttar Pradesh and another9 , it has been held that if the sub-stratum of the two FIRs is common, the proceedings consequent to the second FIR would be unsustainable.

13. In order to examine the impact of more than one FIRs, the Court would be required to look into the facts and circumstances of each case and then apply the 'test of sameness' to find out whether both the FIRs relate to the same incident and to the same occurrence and whether they are in regard to the incidents which are two or more parts of the same transaction, or they relate to two entirely distinct occurrences. It would be only if the second FIR relates to the same incident or where it can be demonstrated that its sub-stratum is the same as that the first FIR, an argument with regard to the criminal proceedings initiated pursuant thereto being vitiated, may be entertained.

14. It is, therefore, seen that lodging of two FIRs would not be permissible in respect of one and the same incident. This would not, however, encompass filing of counter FIR relating to the same and connected cognizable offence. What would be within the scope of prohibition is any further complaint against the same accused subsequent to registration of the case under the Code, for an investigation in that regard would have already commenced, and allowing registration of further complaints, would amount to an improvement of the facts as stated in the original complaint. In order to constitute the 'same transaction', the series of acts alleged against the accused must be connected together in some way by proximity of time, unity of place, purpose or design, and continuity of action. What would be necessary is to find out whether the offences alleged against the accused could be stated to be committed during the same transaction.

15. The question as to whether the subsequently registered FIR is the second FIR relating to the same incident or offence or is based upon distinct and different facts and whether its scope of enquiry is entirely different or not, would have to be examined on the facts and circumstances giving rise to the two FIRs.

16. In the facts of the present case, as pointed out by the learned Additional Advocate General, the two FIRs relate to different incidents having occurred at different points of time and the same cannot be said to be parts of the same transaction. There is no material to suggest that the sub stratum of the second FIR is the same as that of the first FIR.

17. Counsel for the applicant has not been able to demonstrate that the two FIRs can be said to be related to the same incident or to the same transaction, as was sought to be contended by him. He has not been able to dispute the factual and the legal position pointed out by the learned Additional Advocate General, and has also not been able to point out any other ground which may warrant interference at this stage. He makes a prayer for withdrawal of the present application.

18. The present application under Section 482 Cr.P.C. stands dismissed, accordingly.

Order Date :- 13.1.2021

Shalini

(Dr. Y.K.Srivastava,J.)