Bombay High Court
Malhari Shambhu Sakat vs The State Of Maharashtra on 17 April, 2017
Bench: A.S. Oka
apl-1388.16
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1388 OF 2016
1. Kashinath Kutwal
Age 45 years, Occ : Agriculture
2. Prakash Pandurang Hirve
Age 42 years, Occ: Service
3. Suresh Sahebrao Bhosale
Age 55 years, Occ : Agriculture
4. Shobha Bharat Sakat
Age 50 years, Occ: Labour
5. Vilas Laxman Dhende
Age 52 years, Occ : Labour
6. Malhari Shambhu Sakat
Age 65 years, Occ : Labour
All resident of Supe, Tal : Baramati,
District : Pune ... Applicants
(Ori. Accused No.1 to 6)
Versus
1. The State of Maharashtra
(Through P.I., Wadgaon Nimbalkar Police Station
2. Bhalchandra Sarjerao Mahadik
Age 32 years, Occ : Labour
R/at : Supe, Tal : Baramati,
District : Pune ... Respondents
(Respondent no.2 Orig. Complainant)
Mr. Rahul Sopanrao Kate for the Applicants.
Mrs. S.V. Sonawane, APP for the Respondent No.1.
Mr. Ghanasham S. Jadhav for the Respondent No.2.
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CORAM : A.S. OKA &
ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 7th MARCH, 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 17th APRIL, 2017
JUDGMENT (PER A.S. OKA, J.):-
1 The following question arises in this application under
Section 482 of the Code of Criminal Procedure, 1973 (for short
"Cr.P.C.") :
"Whether in the facts of the case after completion of
investigation of a crime and after filing a charge sheet, under
an order of the learned Judicial Magistrate First Class under
Sub-Section (3) of Section 156 of Cr.P.C passed on the basis of
a complaint filed by an accused, one more First Information
Report can be registered in relation to the same incident ."
2 With a view to appreciate the controversy involved, it will
be necessary to make a brief reference to the facts of the case. A First
Information Report (for short "FIR") was registered on 29 th November
2015 at the instance of one Vilas Shamrao Bhosle being C.R. No.224 of
2015 with Wadgaon Nimbalkar Police Station, Taluka Baramati, District
Pune for the offences punishable under Sections 306, 504, 506 read
with Section 34 of the Indian Penal Code. The said FIR alleges that
suicide committed by his wife Sangita in the night of 28 th November,
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2015. In the said FIR, Bhalchandra Sarjerao Mahadik (second
respondent), Vaishali alias Shilpa Bhanudas Shinde and Sheetal Ganesh
Kale have been named as the accused. On completion of the
investigation, charge sheet was filed by the Police against the said three
accused in connection with the said FIR on 14 th March, 2016 for the
offences punishable under Sections 306, 504, 506 read with Section 34
of the Indian Penal Code (IPC). The case was committed to the Court
of Sessions and was numbered as Sessions Case No.47 of 2016. The
second respondent filed an application for discharge on 6 th May 2016
which was rejected by the Order dated 1 st October 2016 by the learned
Additional Sessions Judge, Baramati. Thereafter, on 26 th October 2016,
a complaint was filed by the second respondent against the present
applicants and seven others alleging that they have committed murder
of the said Sangita Vilas Bhosale. The offence punishable under Section
302 read with Section 34 of IPC was alleged. By an Order dated 15 th
November 2016, the Learned Judicial Magistrate First Class, Baramati
exercised the power under Section 156(3) of Cr.P.C and ordered
registration of FIR. Accordingly, FIR bearing CR No.375 of 2016 was
registered Wadgaon Nimbalkar Police Station for the offence punishable
under Section 302 read with Section 34 of IPC against the Present
applicants and six other including the said Vilas, the husband of the
deceased, who is the first informant in the earlier FIR being CR No. 224
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of 2015. By the present application, a prayer is made for quashing FIR
being C.R. No.375 of 2016 for the offence punishable under Section
302 read with Section 34 of IPC.
3 The learned counsel appearing for the applicants submitted
that the act of filing a complaint seeking action under Sub-Section (3)
of Section 156 of the Code of Criminal Procedure is itself an abuse of
process of law. He pointed out that the second respondent filed the said
complaint after his application for discharge in Sessions Case No.47 of
2016 was rejected. He submitted that the said application was rejected
by the learned Sessions Judge by recording a finding that there is
sufficient material on record to proceed against the second respondent.
He submitted that the said order was not challenged by the second
respondent. He pointed out that the fact that charge sheet was filed on
the basis of C.R. No.224 of 2015 and the case was committed to the
Court of Sessions is mentioned in the complaint filed by the second
respondent. He submitted that the effect of the same has not been
considered by the learned Magistrate while passing the impugned order
dated 15th November, 2016. He submitted that the said order shows
complete non application of mind and the registration of the second FIR
in respect of the same offence is nothing but an abuse of process of law.
The learned counsel appearing for the applicants relied upon a decision
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of the Apex Court in the case of Awadesh Kumar Jha and Anr. Vs. State
of Bihar1. He also relied upon another decision of the Apex Court in the
case of T.T. Antony Vs. State of Kerala and Ors. 2. He also relied upon a
decision of the Apex Court in the case of Anju Chaudhary Vs. State of
Uttar Pradesh and Anr.3.
4 The learned counsel appearing for the second respondent
relied upon the following decisions of the Apex Court in support of his
contention that there is no illegality in the registration of the second FIR
on the basis of the same incident. The said decisions are :-
1. Kari Choudhary Vs. Smt. Sita Devi and Others4
2. Upkar Singh Vs. Ved Prakash and Others5
3. Shivshankar Singh Vs. State of Bihar and Another6
4. Surender Kaushik and Ors Vs. State of Uttar Pradesh and
others7.
He submitted that the learned Magistrate has taken into
consideration the fact that on the basis of the earlier FIR, charge sheet
was filed and the case was committed to the Court of Sessions. He
1 (2016) 3 SCC 8
2 (2001) 6 SCC 181
3 (2013) 6 SCC 384
4 (2002) 1 SCC 130
5 (2004) 13 SCC 292
6 (2012) 1 SCC 130
7 (2013) 5 SCC 148
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pointed out that in the complaint filed by the second respondent, even
the fact that the second respondent had applied for discharge is
disclosed. He submitted that the Police completely misdirected
themselves while carrying on investigation on the basis of the first FIR.
He submitted that in fact the case was of murder in which the husband
of the deceased, who is the first informant in the first FIR, is also
involved. He submitted that in view of the law laid down by the Apex
Court in the aforesaid cases, there is nothing wrong with the
registration of the second FIR. He submitted that the Apex Court has
repeatedly held that registration of a counter FIR in respect of the same
or connected incident is permissible. He urged that registration of the
second FIR containing a different version is permissible. He submitted
that no interference is called for in the investigation on the basis of the
second FIR . We have also heard the learned APP for the State.
5 We have given careful consideration to the submissions.
Few admitted facts borne out from the record need to be noted. C.R.
No.78 of 2015 was registered on 29 th November, 2015 at 22.13. The
first informant is Vilas Shamrao Bhosle who is the husband of the
deceased Sangita. The allegation in the FIR is that Sangita committed
suicide. The allegation of an offence of abetment of suicide punishable
under Section 306 of the Indian Penal Code is made against the second
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respondent, Vaishali Shinde and Sheetal G. Kale. After completing
investigation, charge sheet was filed on 14 th March, 2016 against the
second respondent and said two other two accused. Page 80 of the
application shows that on 10th March, 2016 the second respondent had
received a copy of the charge sheet. Thereafter, the case was committed
to the Court of Sessions by the learned Magistrate and on 18 th March,
2016, the case (Sessions Case No.47 of 2016) was assigned to the Court
of Additional Sessions Judge, Baramati for disposal. An application was
made by the second respondent at Exhibit - 26 in the Sessions Case for
discharge. In the said application, there is no allegation made that the
present applicants and seven others committed murder of deceased
Sangita. In paragraph 10 of the order dated 1 st October, 2016 by which
the application for discharge made by the second respondent was
rejected, the learned Additional Sessions Judge, Baramati held that
prima facie there is sufficient material on record to proceed against the
second respondent. Therefore, the application was rejected by the said
judgment and order dated 1st October, 2016. As of today, the said order
has attained finality. Thereafter, on 26 th October, 2016 the second
respondent filed the aforesaid complaint in the Court of Judicial
Magistrate, First Class at Baramati. It is true that the said complaint
refers to the fact that the second respondent had applied for discharge.
However, in paragraph 3 of the complaint, there is a specific averment
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that his application for discharge is pending for passing orders.
However, it was not disclosed that the said application has been
rejected. Though on the complaint, impugned order under Sub-Section
(3) of Section 156 was passed on 15 th November, 2016, it appears that a
copy of the order dated 1st October, 2016 passed by the learned
Additional Sessions Judge rejecting the application for discharge filed
by the second respondent was never produced before the learned
Magistrate. The operative part of the impugned order passed on the
said complaint reads thus :
"Order below Exh.1
Perused the complainant and documents filed along
with it. Heard the complainant counsel. It appears from the
documents that offence punishable u/s.306 is registered in
respect of the present offence, against accused not relate to
any accused in this complaint. The letter alleged to be
written by the deceased herself to Tahsildar, Baramati prior
her death create suspicion as to the cause of her death. The
complainant alleged that the accused has committed the
offence punishable u/s.302 of IPC. Prima facie the
complaint and document disclose the cognizable offence.
Police has failed to take action despite intimation u/s. 154
of Cr.P.C. Considering the nature of the offence, the same
should be investigated through police machinery. Hence, I
think it fit to direct the police officer to register the FIR in
respect of the present offence.
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ORDER
(1) The officer incharge of police station Vadgaon Nimbalkar is
directed under Section 156(3) of Cr.P.C. to register the first
information report on the basis of this complaint and to
proceed in accordance with law.
(2) Certified copy of the complaint alongwith this order and
documents filed by the complainant be sent to the said
officer.
(3) The proceeding is disposed off as the manner would come
up again before the court in the form of final report under
Section 173 of Cr.P.C.
(4) On the receipt of final report, these papers be tagged with
that report."
6 Exhibit - A is a photocopy of the certified copy of the
complaint. From the said copy and from the aforesaid order, it appears
that an affidavit in support of the complaint was not filed by the second
respondent. The impugned order shows that the learned Magistrate did
not apply his mind to the fact that on the basis of first FIR in respect of
the same incident, a charge sheet was already filed and the case was
already committed to the Court of Sessions. The learned Magistrate has
mechanically observed that prima facie, the complaint and the
documents produced disclose commission of a cognizable offence and
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that the police have failed to take action. However, there was no
assertion in the Complaint that a recourse was taken to Sub-Section (3)
of the Section 154 of Cr.P.C. This itself was a sufficient ground not to
pass an Order under Sub-Section (3) of Section 156. Even assuming
that the allegations in the complaint disclosed commission of a
cognizable offence, the learned Magistrate could not have mechanically
passed an order under Sub-Section (3) of Section 156. The learned
Magistrate ought to have applied his mind to the facts and
circumstances of the case. When there was an averment in the
complaint that discharge application filed by the second respondent was
pending, before passing the order, the learned Magistrate ought to have
inquired about the outcome of the discharge application. The second
respondent, while filing the complaint, suppressed a material fact that
the application for discharge was rejected.
7 Thus, the factual scenario which emerges is that on the
basis of the FIR lodged on 29th November, 2015 by the husband of the
deceased, investigation has been carried out and charge sheet has been
submitted. The case was committed to the Court of Sessions on 18 th
March, 2016. The second respondent who was shown as an accused,
applied for discharge and his application was rejected on 1 st October,
2016 by a detailed order. It was held by the Sessions Court that prima
facie, there is sufficient material against the second respondent to
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proceed. The said order has attained finality. After the said Order was
passed, on 26th October 2016, without disclosing the said Order, the
aforesaid Complaint was filed on the basis of the same incident. On
the basis of the impugned order dated 25 th November, 2016 passed
under Sub-Section (3) of section 156 of Cr.P.C, the impugned FIR has
been registered on 19th November, 2016 alleging commission of an
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code against the husband of the deceased, the present
applicants and five others. According to us, the action of filing the
complaint under Sub-Section (3) of Section 156 of Cr.P.C. by the second
respondent after filing an application for discharge and after the said
application was rejected on merits, is nothing but an abuse of process of
law. Whether the registration of second FIR can be made is another
issue. Even without going into the said issue, the applicants must
succeed.
8 In the case of Amit Bhai Anilchandra Shaha Vs. Central
Bureau of Investigation and Another 8,the Apex Court discussed the issue
of legality and validity of registration of second FIR. Paragraph 37 of
the said decision quotes with approval the decision of the Apex Court in
the case of T.T. Antony Vs. State of Kerala and Ors. Paragraph 37 of the
decision in the case of Amit Bhai Shah reads thus :-
8 (2013) 6 SCC 348
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"37. 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. Antony, 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 paras 19,
20 and 27 of that judgment are relevant which read as
under : (SCC pp.196-97 & 200)
"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
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 satisfied 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
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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 just exceptions."
(emphasis added)
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9 In the case of T.T. Antony Vs. State of Kerala and Others, the
Apex Court considered the same issue. In fact paragraphs 19 and 20 of
the said decision have been quoted in the case of Amit Bhai Shah and
the Apex Court observed the said law laid down therein has not
undergone any change. In paragraph 21 of the decision in the case of
T.T.Antony, an argument of the learned Solicitor General of India based
on the decision in the case of Ram Lal Narang v. State (Delhi Admn.) 4
was considered. The argument was that it is permissible to get second
FIR registered in respect of the same case. Paragraphs 21 and 22 of the
said decision read thus :-
"21. The learned Solicitor-General relied on the judgment of
this Court in Ram Lal Narang & Ors. Vs. State (Delhi
Administration) [(1979) 2 SCC 322] (referred to as
"Narang case") to contend that there can be a second
FIR in respect of the same subject-matter. In that case
the contention urged by the appellant was that the
police had committed illegality, acted without
jurisdiction in investigating into the second case and the
Delhi Court acted illegally in taking cognizance of that
(the second) case. A reference to the facts of that case
would be interesting. Two precious antique pillars of
sandstone were deposited in the court of Ilaqa
Magistrate, Karnal, as stolen property. One N.N. Malik
filed an application before the Magistrate seeking
custody of the pillars to make in detail study on the
pretext that he was a research scholar. It appears that
the then Chief Judicial Magistrate of Karnal, (H.L.
Mehra), was a friend of Malik. At the instance of Mehra
the said Ilaqa Magistrate ordered that the custody of the
pillars be given to Malik on his executing a bond. About
three months thereafter Malik deposited two pillars in
the Court of Ilaqa Magistrate, Karnal. After sometime it
4 (1979) 2 SCC 322
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came to light that the pillars returned by Malik were not
the original genuine pillars but were fake pillars. An FIR
was lodged against both Malik and Mehra under Section
120-B read with Sections 406 and 420 of IPC alleging
conspiracy to commit criminal breach of trust and
cheating. The CBI after necessary investigation filed
charge-sheet in the Court of Special Magistrate, Ambala,
against both of them. Ultimately on the application of
the public prosecutor the case was permitted to be
withdrawn and the accused were discharged. Sometime
later the original genuine pillars were found in London
which led to registering an FIR in Delhi under Section
120-B read with Section 411 of IPC, and Section 25(1)
of the Antiquities and Art Treasures Act, 1972 against
three persons who were brothers (referred to as "the
Narangs"). The gravamen of the charge against them
was that they, Malik and Mehra, conspired together to
obtain custody of the genuine pillars, got duplicate
pillars made by experienced sculptors and had them
substituted with a view to smuggle out the original
genuine pillars to London. After issuing process for
appearance of the Narangs by the Magistrate at Delhi,
an application was filed for dropping the proceedings
against them on the ground that the entire second
investigation was illegal as the case on the same facts
was already pending before Ambala Court, therefore,
the Delhi Court acted without jurisdiction in taking
cognizance of the case on the basis of illegal
investigation and the report forwarded by the police.
The Magistrate referred the case to the High Court and
the Narangs also filed an application under Section 482
of CrPC to quash the proceedings. The High Court
declined to quash the proceedings, dismissed the
application of the Narangs and thus answered the
reference. On appeal to this Court, it was contended
that the subject-matter of the two FIRs and two charge-
sheets being the same, there was an implied bar on the
power of the police to investigate into the subsequent
FIR and the Court at Delhi to take cognizance upon the
report of such information. This Court indicated that the
real question was whether the two conspiracies were in
truth and substance the same and held that the
conspiracies in the two cases were not identical. It
appears to us that the Court did not repel the
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contention of the appellant regarding the illegality of
the second FIR and the investigation based thereon
being vitiated, but on facts found that the two FIRs in
truth and substance were different - the first was a
smaller conspiracy and the second was the larger
conspiracy as it turned out eventually. It was pointed
out that even under the Code of 1898, after filing of
final report, there could be further investigation and
forwarding of further report. The 1973 CrPC specifically
provides for further investigation after forwarding of
report under sub-section (2) of Section 173 of CrPC and
forwarding of further report or reports to the Magistrate
concerned under Section 173(8) of CrPC. It follows that
if the gravamen of the charges in the two FIRs - the first
and the second - is in truth and substance the same,
registering the second FIR and making fresh
investigation and forwarding report under Section 173
CrPC will be irregular and the Court can not take
cognizance of the same.
22. On a perusal of the judgment of this Court in M.Krishna
vs. State of Karnataka [1999 (3) SCC 247], we do not
find anything contra to what is stated above. The case is
distinguishable on facts of that case. In the case on hand
the second FIR is filed in respect of the same incident
and on the same facts after about three years."
10 In the case of Awadesh Kumar Jha which is the latest
judgment on the point, in paragraph 21, the Apex Court reiterated the
law laid down in the case of Amitbhai Shah and held in the facts of the
case, the said decision will not apply. In paragraph 26, after referring to
the decisions in the cases of Amitbhai Shah and T.T.Antony, the Apex
Court in the facts of the case held thus:
"26. However, this principle of law is not applicable to the
fact situation in the instant case as the substance of the
allegations in the said two FIRs is different. The first
FIR deals with the offences punishable under
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Sections 3, 4, 5, 6 and 7 of the Act, whereas, the
second FIR deals with the offences punishable under
Sections 419 and 420 IPC which are alleged to have
been committed during the course of investigation of
the case in the first FIR. This Court is of the view that
the alleged offences under the second FIR in
substance are distinct from the offences under the
first FIR and they cannot, in any case, said to be in
the form of the part of same transaction with the
alleged offences under the first FIR. Therefore, no
question of further investigation could be made by the
investigating agency on the alleged offences arisen as
the term "further investigation" occurred under sub-
section (8) to Section 173 CrPC connotes the
investigation of the case in continuation of the earlier
investigation with respect to which the charge-sheet has
already been filed."
(emphasis added)
11 In facts of the case in hand, the impugned second FIR is
based on the same incident of the death of the said Sangita. In a case
like the case in hand, further investigation under Section 173(8) of
Cr.P.C is possible depending upon the facts of the case on the question
whether the the death is suicidal or homicidal. However, further
investigation cannot be made without the order of the Court.
12 Now, we turn to the decisions relied upon by the second
respondent. The first decision is in the case of Kari Choudhari Vs. Smt.
Sita Devi and Ors. In Paragraphs 10 and 11, the Apex Court held thus:
"10. The result of the said factual development is this. The
complainant Sita Devi in FIR No. 135 is allowed to
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persist with her complaint despite the conclusion
reached by the police that the said complaint was false.
But that course adopted by the court cannot disable the
police to continue to investigate into the offence of
murder of Sugnia Devi and to reach the final conclusion
regarding the real culprit of her murder. The police
completed their investigation only when the charge-sheet
was finally laid on 31-3-2000 against the first respondent
Sita Devi and others. The said case has to be legally
adjudicated for which a trial by the Sessions Court is
indispensable.
11. Learned counsel adopted an alternative contention that
once the proceedings initiated under FIR No. 135 ended
in a final report the police had no authority to register a
second FIR and number it as FIR No. 208. Of course the
legal position is that there cannot be two FIRs against
the same accused in respect of the same case. But when
there are rival versions in respect of the same episode,
they would normally take the shape of two different FIRs
and investigation can be carried on under both of them
by the same investigating agency. Even that apart, the
report submitted to the court styling it as FIR No. 208 of
1998 need be considered as an information submitted to
the court regarding the new discovery made by the
police during investigation that persons not named in
FIR No. 135 are the real culprits. To quash the said
proceedings merely on the ground that final report had
been laid in FIR No. 135 is, to say the least, too
technical. The ultimate object of every investigation is to
find out whether the offences alleged have been
committed and, if so, who have committed it."
13 In the decision in the case of Kari Chaudhari, the
investigation was carried out in the first FIR. The Police found the
complaint to be false. Thereafter, the investigation on the basis of the
second FIR proceeded and charge sheet was filed. In the present case,
the first FIR was registered on 29th November, 2015. Charge sheet was
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filed on 14th March, 2016. The case was committed to the Court of
Sessions on 18th March, 2016. Application for discharge made by the
second respondent was rejected on 1 st October, 2016. On the basis of
private complaint filed thereafter on 26 th October, 2016, by the order
dated 15th November, 2016 the second FIR was registered. As noted
earlier, a copy of the charge sheet was served upon the second
respondent on 10th March, 2016. after the case was committed to the
Sessions Court, in May 2016, he filed an application for discharge, 25
days after the application for discharge was rejected on merits that he
filed the complaint invoking Sub-Section (3) of Section 156 Cr. P.C. The
Order passed on application for discharge has become final. That is the
reason why we have held that in the facts of the case, the action of the
second respondent of taking recourse to Sub-Section (3) of Section 156
is nothing but an abuse of process of law.
14 At this stage, we may consider the decision of the Apex
Court in the case of Anju Chaudhary Vs. State of Uttar Pradesh and Ors.,
in which the same issue arose. Paragraph 1 of the said decision reads
thus :-
"1. Leave granted. A cardinal question of public importance
and one that is likely to arise more often than not in
relation to the lodging of the first information report
(FIR) with the aid of Section 156(3) of the Code of
Criminal Procedure (for short "the Code") or otherwise
independently within the ambit of Section 154 of the
Code is as to whether there can be more than one FIR in
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relation to the same incident or different incidents
arising from the same occurrence."
15 In paragraph 18, the Apex Court considered the decision in
the case of Kari Chaudhari. After considering the decision in the case of
Kari Chaudhari, in paragraph 25 the Apex Court held thus :-
"25. In the instant case, it is seen in regard to the incident
which took place on 20-5-1995, the appellant and the
first respondent herein have lodged seperate complaints
giving different versions but while the complaint of the
respondent was registered by the police concerned, the
complaint of the appellant was not so registered, hence
on his prayer the learned Magistrate was justified in
directing the police concerned to register a case and
investigate the same and report back. In our opinion,
both the learned Additional Sessions Judge and the
High Court erred in coming to the conclusion that the
same is hit by Section 161 or 162 of the Code which, in
our considered opinion, has absolutely no bearing on
the question involved. Section 161 or 162 of the Code
does not refer to registration of a case, it only speaks of
a statement to be recorded by the police in the course of
the investigation and its evidentiary value."
16 The Apex Court observed that if both FIRs relate to the
same incident and to the same occurrence, the second FIR will be liable
to be quashed. However, if they relate to incidents which are in two or
more parts of the same transaction or relate completely to a distinct
occurrence, the second FIR is permissible. The present case will fall in
the first category.
17 Another decision relied upon by the learned counsel
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appearing for the second respondent was in the case of Shivshankar
Singh Vs. State of Bihar and Another. Paragraph 10 of the said decision
reads thus :-
"10. We do not find any force in the submission made on
behalf of the respondents that as in respect of the same
incident i.e. decoity and murder of Gopal Singh, the
appellant himself along with others is facing criminal
trial, proceedings cannot be initiated against
Respondent 2 at his behest as registration of two FIRs
in respect of the same incident is not permissible in law,
for the simple reason that law does not prohibit
registration and investigation of two FIRs in respect of
the same incident in case the versions are different. The
test of sameness has to be applied otherwise there
would not be cross-cases and counter-cases. Thus, filing
another FIR in respect of the same incident having a
different version of events is permissible. [Vide Ram Lal
Narang v. State (Delhi Admn.), Sudhir v. State of M.P.,
T.T. Antony v. State of Kerala, Upkar Singh v. Ved
Prakash and Babubhai v. State of Gujarat."
In the facts of this case before the Apex Court, the first FIR
was registered on 6th December, 2004 on the basis of an order passed
under Sub-Section (3) of Section 156. The second FIR was registered on
29th December, 2004. Paragraph 4 of the said decision shows that when
the second FIR was filed, investigation in relation to the first FIR was
pending.
18 The learned counsel appearing for the second respondent
lastly relied upon decision in the case of Surender Kaushik and Ors. Vs.
State of U.P and Others. Paragraph 24 of the said decision reads thus :-
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"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.
19 In the said case, the FIR was registered on 29 th May, 2012
and the second one was registered on 21 st August, 2012. Thus, in the
present case, the order of the learned Magistrate under Sub-Section (3)
of Section 156 is completely illegal for more than one reason and
consequential registration of the FIR is also illegal. We find that the law
laid down in the cases of T.T. Antony and Amitbhai Shah has not
undergone any change.
20 We may, however, note here that it is always open for the
Police to seek permission to the concerned Court under Sub-Section (8)
of Section 173 of the Code of Criminal Procedure, 1973 for carrying out
further investigation. None of the observations and findings recorded in
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this judgment will affect the power of the Competent Court to grant
permission under Sub-Section (8) of Section 173 of the CrPC.
21 Subject to what is observed above, the application must
succeed and we pass the following order :-
ORDER
(i) The order dated 15th November, 2016 passed by the
learned Judicial Magistrate, First Class, 3rd Court,
Baramati is set aside and RCC No.645 of 2014 stands
dismissed;
(ii) Consequentially, the First Information Report bearing
C.R. No.375 of 2016 registered with Wadgaon
Nimbalkar Police Station on 19th November, 2016 is
quashed and set aside;
(iii) We make it clear that we have made no adjudication on
the merits of the pending case and merits of the
allegations made by the second respondent as regards
commission of the offence punishable under Section
302 read with Section 34 of the Indian Penal Code;
(iv) Rule is made absolute on above terms with no order as
to costs.
(ANUJA PRABHUDESSAI, J) (A.S. OKA, J)
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