Andhra Pradesh High Court - Amravati

Dr. Gade Venugopal Rao And Others vs The State Of A.P.,Rep.,Pp And ... on 14 June, 2022

     THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

            CRIMINAL PETITION NO.13380 OF 2015

ORDER :

This Criminal Petition, under Section 482 of the Code

of Criminal Procedure, 1973 (for short, 'CrPC'), is filed to

quash the proceedings in FIR No.349 of 2015 of Tadepalli

police station, registered for the offences punishable under

Sections 120B, 302, 201, 323, 506, 509 read with 34 of the

Indian Penal Code, 1860 (for short, 'IPC'). Petitioners

herein are A.1 to A.6 in the said crime.

2. A private complaint has been lodged by 2nd

respondent herein against the petitioners for the aforesaid

offences and the same was referred to police under Section

156 (3) CrPC to police. Pursuant to the same, police

registered the CFR as a case in crime No.349 of 2015 of

Tadepalli police station for the aforesaid offences on

07.11.2015.

3. 2nd respondent herein filed Writ Petition

No.14613 of 2014 before the erstwhile composite High

Court seeking a direction to conduct re-postmortem on the

body of deceased Krishna Priya, which was buried. By an

order dated 08.08.2014, the composite High Court disposed

of the Writ Petition, directing the Superintendent,

Government General Hospital, Guntur to conduct re-

postmortem on the body of the deceased Krishnan Priya.

The Composite High Court also directed the Station House

Officer, Tadepalli police station to provide required

assistance to the Superintendent, Government General

Hospital, Guntur. The Composite High Court directed to

follow due procedure for exhuming the body and to

videograph in exhuming the body, and to conduct re-

postmortem. The entire exercise was ordered to be

completed within a period of two weeks from the date of

receipt of the said order.

4. Aggrieved by the aforesaid order dated

08.08.2014, passed by the learned single Judge of the

Composite High Court, 1st petitioner herein, who is

husband of 2nd respondent herein, filed Writ Appeal

No.1142 of 2014 before a Division Bench against 2nd

respondent and other officials. A Division Bench of the

Composite High Court passed order dated 10.09.2014 in

W.A.M.P. No.2741 of 2014 in W.A. No.1142 of 2014, which

reads as under:

"We have seen the order of the learned trial Judge and we have heard the learned counsel.

We are of the prima facie view that the order of the learned trial Judge is apparently without any basis of law as the post mortem was carried out as it was a case of unnatural death, as long back as on 11.02.2014. Moreover, there has not been any FIR or complaint with regard to the death of the

deceased. For what purpose, further post mortem is to be carried out is not understandable by this Court. On the alleged ground that the post mortem is not properly conducted, for that matter body cannot be exhumed because sentimental value is involved. There must be some logical basis. Hence, the order impugned is stayed. We make it clear that pendency of this appeal or this order will not preclude the respondent/writ petitioner from taking action in accordance with law."

5. 1st petitioner herein filed W.A.M.P. No.1927 of

2015 in the abovesaid Writ Appeal seeking a direction to

permit him to file certified copy of FIR No.37 of 2014 dated

12.02.2014 of Tadepalli police station; certified copy of

opinion of the A.P. Forensic Laboratory regarding

examination of documents in the said crime and photostat

copy of certified copy of remand report on behalf of

prosecution in the said crime, as additional material papers

in the Writ Appeal. 2nd respondent herein filed W.A.M.P.

No.2171 of 2015 in the aforesaid Writ Appeal praying to

dismiss the aforesaid petition filed by 1st petitioner herein

and reject the documents sought to be filed as additional

material papers. By its order dated 27.08.2015, the

Division Bench disposed of the Writ Appeal, observing as

under:

"We have heard the appeal for some time. In the course of hearing, Mr.D.V.Sitarama

Murthy, learned Senior Counsel for respondent No.1, on instructions, prayed for withdrawal of the writ petition bearing W.P. No.14613 of 2014 and sought direction to the police to take further steps on the basis of the order dated 31.01.2015, passed by learned Magistrate in the private complaint filed by respondent No.1, under Section 156(3) of the Code of Criminal Procedure. Mr. Prahalad Reddy, learned counsel appearing for the appellant has no objection for allowing respondent No.1 to withdraw the writ petition. He, however, sought direction to the police to take further steps strictly in accordance with law.

Having considered the submissions of the learned counsel for the parties, we dispose of this appeal by the following order.

"The writ petition (W.P.No.14613 of 2014) is dismissed as withdrawn. The concerned police station shall take further steps in pursuance of the order dated 31.01.2015 passed under Section 156 (3) of the Code of Criminal Procedure on the private complaint filed by respondent No.1 dated 10.01.2014 strictly in accordance with law. While passing this order, we shall not be understood to have examined merits of the case. No costs.""

6. Thereafter, 1st petitioner herein filed a Review

W.A.M.P. No.2532 of 2015 in the aforesaid Writ Appeal,

seeking review of the order dated 27.08.2015 passed in the

Writ Appeal No.1142 of 2014 insofar as the portion of the

order that directing "that the concerned Police Station shall

take further steps in pursuance of the order dated

31.01.2015 passed under section 156 (3) of the Code of

Criminal Procedure on the private complaint filed by

respondent No.1 dated 10.10.2014 strictly in accordance

with law." and consequently delete the same. By its order

dated 13.11.2015, the Composite High Court was pleased

to dispose of the review petition observing as under:

"The concluding paragraph after correction reads thus:

"The writ petition (W.P. No.14613 of 2014) is dismissed as withdrawn. The concerned police station shall take further steps in pursuance of the order dated 30.01.2015 passed by the Additional Junior Civil Judge, directing to conduct an enquiry into the matter under Section 202 (1) of the Code of Criminal Procedure, on the private complaint filed by respondent No.1 dated 10.10.2014, strictly in accordance with law. While passing this order, we shall not be understood to have examined merits of the case. No costs.""

7. The present Criminal Petition is filed to quash

the proceedings in FIR No.349 of 2015 of Tadepalli police

station on the ground that earlier, a case in crime No.37 of

2014 of Tadepalli police station was registered on

12.02.2014 in respect of the offence that took place on

11.02.2014, and with the same set of facts, the present

private complaint was filed by 2nd respondent herein at a

belated stage and the same has been referred to police

under Section 156 (3) CrPC. Learned counsel for the

petitioners strenuously contended that there cannot be

another FIR in respect of the same offence, more so, there

was a direction to the police on 30.01.2015 to conduct

enquiry under Section 202 (1) CrPC and submit report

before 26.02.2015. It is further submitted by the learned

counsel for the petitioners that a preliminary report has

already been submitted by the Sub Divisional Police Officer,

North Division, Guntur and hence, there cannot be parallel

proceedings by registering the second FIR viz. FIR No.349

of 2015, in respect of the very same crime and hence the

second FIR is liable to be quashed.

8. Per contra, learned counsel for 2nd respondent

opposed the contentions raised by the learned counsel for

the petitioners and submitted that in Writ Appeal No.1142

of 2014, learned counsel appearing for the petitioners

herein himself categorically reported no objection for

allowing 1st respondent therein (2nd respondent herein) to

withdraw the Writ Petition, and he, however, sought a

direction to take further steps strictly in accordance with

law. It is his further submission that having stated so, the

petitioners are now praying for quashing the said FIR on

the ground that it amounts to second FIR. Learned

counsel for 2nd respondent also took this Court to the

averments of the complaint and submitted that the

averments in the private complaint and the averments in

FIR No.37 of 2014, are not one and the same. Hence, he

prayed to dismiss the Criminal Petition.

9. On the other hand, learned Assistant Public

Prosecutor appearing for 1st respondent-State also

contended that there is no sameness of the accusations

and they are different, and by any stretch of imagination,

the present FIR would not amount to a second FIR.

10. This Court perused the record. Admittedly, 2nd

respondent herein filed a private complaint at a belated

stage i.e. after lapse of 8 months of the occurrence of the

incident. The allegations in the private complaint, in brief,

are as follows:

1st petitioner herein married 2nd respondent on

01.08.1990 at Amaravathi temple, and out of the wedlock,

they blessed with a daughter by name Krishna Priya

(deceased in the present crime) on 17.05.1993; after birth

of Krishna Priya, 2nd respondent came to know that 1st

petitioner herein had already married a lady by name

Dr.T.Padmaja Rani and they had a son by name G.Phani

Krishna (A.4). It is further alleged that 1st petitioner, 2nd

respondent and the deceased, who was at the age of one

year, resided in the house of one Madhava Rao, for 7 years;

right from day one, 2nd respondent was taking care of the

daughter in the best possible manner and 1st petitioner

never took care of her; as time passed by, relations between

2nd respondent and 1st petitioner started deteriorating, but

the former never let that effect on the life of the deceased,

and to cover up his illegal activities, 1st petitioner herein

stood down to such a level that he started character

assassination against 2nd respondent, and poisoned the

mind of the deceased that 2nd respondent was having illicit

intimacy with one Sambasiva Rao.

It is further alleged that 1st petitioner instigated and

brain washed the deceased daughter to give a false and

baseless complaint against 2nd respondent on 07.02.2012,

and in pursuance of the same, 2nd respondent and her

father transferred the properties in favour of the deceased

under six registered documents in the interest of future of

the deceased. On 11.02.2014, the deceased died. 2nd

respondent states that her daughter became a sacrificial

goat in the illegal schemes of 1st petitioner, and after

hearing about death of the deceased, 2nd respondent was

completely shocked and became unconscious, and she

along with her immediate relative, went to house of 1st

petitioner to see the dead body of the deceased, but they

were physically thrown out.

It is further alleged that 1st petitioner and other

accused conspired together and planted a false story as if

the deceased committed suicide and also managed to create

a suicide note as if the deceased had written it. On

12.02.2014 at 2.00 AM, 1st petitioner gave a false report to

police against 2nd respondent, her parents and others, that

they harassed the deceased mentally and on that the

deceased wrote a suicide note and committed suicide by

jumping from Krishna Barrage Bridge, and basing on the

same, case in crime No.37 of 2014 of Tadepalli police

station was registered.

It is further alleged in the complaint that no

postmortem was conducted and funeral rites were

completed by noon on the same day i.e. 12.02.2014, and

the alleged postmortem report which is a part of record, is a

created document and does not reflect true and correct

picture. The said postmortem report discloses that the

deceased would appear to have died of head injury due to

blunt force, and postmortem Doctor does not choose to

send viscera and hyoid bone to Forensic Science Laboratory

for analysis.

It is further alleged that the accused, with an

intention to kill the deceased and conspired to do away the

life of the deceased, take her to the Prakasam Barrage,

threw away from it, and even then, the deceased would

have survived had she been taken to a nearby hospital, but

1st petitioner, with an even intention, took her to Times

Hospital situated at a distance of more than 12 KMs from

the scene, where the Doctors declared her dead.

With the aforesaid accusations, the present private

complaint has been filed as against the petitioners for the

alleged offences and the same was referred to police under

Section 156 (3) CrPC by the learned Magistrate.

11. This Court also perused the allegations in crime

No.37 of 2014. 1st petitioner herein is the informant in the

said crime. The allegations in the report reveals that due

to harassment and insult caused by 2nd respondent herein

(A1 in the said crime) and other accused in the said crime

and due to their acts towards the deceased, she got mental

depression, despair with her life and committed suicide by

jumping into Krishna River, fell on water lock gate, received

fatal injuries, fell in water and died, and thus, all the

accused in the said crime are responsible for the suicide of

the deceased and they intentionally abetted the deceased to

commit suicide inspite of residing with 1st petitioner herein.

12. A perusal of the allegations in both the FIRs

would go to show that the allegations in the two FIRs are

not one and the same. First crime FIR No.37 of 2014 is in

respect of offence punishable under Section 306 IPC and

the second crime FIR No.349 of 2015 is in respect of

offence punishable under Section 302, 120B IPC and other

offences. By any stretch of imagination, both the FIRs

cannot be said as one and the same since the accused, and

the offences alleged, contained in the FIRs are not similar.

13. Learned counsel for the petitioners relied on a

decision of the Hon'ble Supreme Court of India in Amitbhai

Anilchandra Shan v. The Central Bureau of Investigation and

another,1 wherein it is held thus: (paragraph No.32)

"This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:

"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173 (2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh

Judgment dated 08.04.2013 in W.P. (Criminal) No.149 of 2012

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 CrPC.

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 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR 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 FIR 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 CrPC.

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 CrPC 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 Narang case 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 under way 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 CrPC or under Articles 226/227 of the Constitution." The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.""

14. After examining the facts and circumstances

giving rise to lodging of both the FIRs, 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 instances having two or more parts of the same

transaction. In the present case, there is no sameness for

the reason that the facts and circumstances in both the

cases are not alike. The version in the second FIR is

different from that of the first FIR. While referring the

private complaint lodged by 2nd respondent herein, the

learned Magistrate directed to conduct enquiry under

Section 202 (1) CrPC and submit report. Applying the