Bombay High Court
Eknath S/O Rangnath Kadam And ... vs The State Of Maharashtra And Anr on 8 March, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4222 OF 2016
1. Eknath S/o Rangnath Kadam,
(Correct Name: Eknath S/o Rangrao
Kadam) Age : 26 years.
2. Bhagwan s/o Bhimrao Kadam,
Age: 30 years,
3. Pradeep s/o Uttam Kadam,
Age: 22 years,
4. Uddhav S/o Ramrao Kadam,
Age: 23 years,
5. Bali s/o Bhimrao Kadam,
(Correct name : Baliram S/o
Bhimrao Kadam), Age 22 years,
6. Amit s/o Maroti Kadam,
Age: 20 years,
7. Rangrao S/o Dajiba Kadam,
Age: 65 years,
8. Rahul s/o Balaji Kadam,
Age: 21 years,
9. Bhagwat S/o Gangaram Kadam,
Age: 22 years,
10. Hiraman s/o Baburao Kadam,
(Correct name: Hiraman s/o
Madhukar Kadam)
Age: 22 years,
11. Ganpat S/o Ramrao Kadam,
(Correct name: Ganesh s/o
Ramrao Kadam)
Age: 40 years.
12. Gulab s/o Taterao Kadam,
Age: 45 years,
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13. Masaji s/o Bandu Kadam,
(Correct Name: Masaji s/o Jalbaji
Kadam), Age 20 years,
14. Dnyanoba s/o Mahaduji Kadam,
(Correct name: Dnyanoba S/o Mahadji
Kadam) Age : 60 years,
15. Balaji s/o Mahadji Kadam,
Age: 50 years,
16. Gajanan s/o Balaji Kadam,
Age: 27 years,
17. Bandu s/o Mahadji Kadam
(correct Name: Bandu s/o Dnyanoba
Kadam) Age: 32 years.
18. Gangadhar s/o Dashrath Kadam,
(correct Name: Gangadhar s/o
Dattramji Kadam) Age: 28 years,
19. Bhaskar s/o Nanarao Kadam,
(Correct Name: Bhaskar s/o Bhivati
Kadam] Age: 23 years,
20. Santosh s/o Subhash Kadam,
Age: 28 years,
21. Satish s/o Subhash Kadam,
Age: 26 years,
22. Nivrutti s/o Ramrao Bolke,
Age: 35 years,
23. Vyankati s/o Baburao Kadam,
Age: 32 years,
24. Subhash s/o Keshav Kadam,
Age: 40 years,
25. Sanjay s/o Baburao Kadam,
Age: 30 years,
26. Dnyanoba s/o Purbhaji Kadam,
Age: 23 years,
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27. Shahaji s/o Nanarao Kadam,
(Correct Name: Shahaji s/o
Bhivaji Kadam], Age : 26 years,
28. Gajanan s/o Baburao Kadam,
(Correct Name: Gajanan s/o
Bapurao Kadam) Age: 30 years,
29. Pradeep s/o Sakharam Ladhe,
Age: 25 years,
30. Nitin s/o Maroti Kadam,
(Correct Name: Nitin s/o Maroti
Kadam), Age 23 years,
31. Vijay s/o Gulab Kadam,
(correct Name: Vijay s/o Vitthal
Kadam), Age 24 years,
32. Raju s/o Sambhaji Kadam,
Age: 32 years,
33. Gajanan s/o Sambhaji Kadam,
Age: 30 years,
34. Ganpat Bhimrao Kadam,
Age: 40 years,
35. Ankush s/o Ganpat Kadam,
Age: 20 years,
36. Rama s/o Sopan Kadam,
(correct Name: Ramprasad s/o
Sopan Kadam), Age 22 years,
37. Gajanan s/o Bapurao Kadam,
(correct Name: Gajanan s/o Kondiba
Kadam) Age: 28 years,
38. Maroti S/o Purbhaji Kadam,
Age: 45 years,
39. Balaji s/o Purbhaji Kadam,
Age: 43 years,
40. Abhimanyu s/o Eknath Kadam,
Age: 25 years,
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41. Kashinath s/o Piraji Kadam,
Age: 40 years,
42. Gopal s/o Eknath Kadam,
Age: 26 years,
43. Omkar s/o Vishambhar Kadam,
Age: 26 years,
44. Soman s/o Keshav Kadam,
(Correct Name: Sopan s/o Keshav
Panchal) Age: 28 years,
45. Bandu s/o Keshav Panchal,
(Correct name :Purbhaji s/o Keshav
Panchal) Age 32 years,
46. Avadhoot s/o Chudaman Kadam,
(correct Name: Shivaji s/o Chudaman
Kadam), Age 41 years,
47. Pradyum s/o Kashinath Kadam,
(correct Name: Vibhakar s/o Kashinath
Kadam) Age: 19 years.
48. Gajanan s/o Shyamrao Kadam,
Age: 27 years,
49 Vikas s/o Shaymrao Kadam,
Age: 20 years,
50. Pintu s/o Baburao Kadam,
(Correct Name: Nitin s/o Baburao
Kadam), Age: 26 years,
51. Dnyaneshwar s/o Baburao Kadam,
(Correct name: Dnyaneshwar s/o
Kondiba Kadam), Age 27 years,
52. Balaji s/o Atmaram Kadam,
Age:21 years,
53. Vinod s/o Prakash Kadam,
Age: 21 years,
54. Ramu s/o Kishan Kadam,
(Correct Name: Ramrao s/o Kishan
Kadam) Age: 36 years,
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54-A. Sandip s/o Dnyanoba Kadam,
(Correct Name: Sandip Dnyaneshwar
Kadam), Age: 24 yrs.
55. Rohji s/o Naroba Kadam,
Age: 23 years,
56. Gangadhar s/o Ganesh Panchal,
Age: 22 years,
57. Kailash s/o Vishwambhar Ware,
Age: 29 years,
58. Data s/o Deorao Kadam,
Age: 49 years,
59. Umakant s/o Ramesh Kadam,
Age: 29 years,
60. Ramesh s/o Vyanktrao Kadam,
Age: 50 years,
61. Purbhaji s/o Vyankatrao Kadam,
Age: 59 years,
62. Gangaram s/o Purbhaji Kadam,
Age: 55 years,
63. Kondiba s/o Datta Kadam,
Age: 26 years,
64. Govind s/o Datta Kadam,
Age: 28 years,
65. Ankush s/o Khemaji Kalyankar,
Age: 23 years,
66. -
67 Angad s/o Subhash Kadam,
Age: 29 years,
68. Rama s/o Pundlik Lade,
Age: 27 years,
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69. Sadashiv s/o Kondiba Kadam,
Age :35 years,
70. Laxman s/o Umaji Kadam,
Age: 37 years,
71. Sakharam s/o Raosaheb Kadam,
Age: 33 years,
72. Dnyaneshwar s/o Vishwambhar Kadam,
Age: 27 years,
73. Madhav s/o Vitthalrao Ladhe,
Age: 38 years,
74. Sangram s/o Balaji Kadam,
Age: 28 years,
75. Pundlik s/o Mahadu Kadam,
Age: 36 years,
76. Ganesh S/o Gangaram Panchal,
Age: 46 years,
77. Namdeo Ranga Kadam,
Age: 48 years,
78. Gyanoji s/o Babhanaji Kadam,
Age: 32 years,
79. Gajanan s/o Purbhaji Kadam,
Age: 26 years,
80. Narayan s/o Bhujang Kadam,
Age: 32 years,
81. Narayan s/o Baburao Kadam,
Age: 28 years,
82. Raju s/o Prakash Kadam,
Age: 21 years,
83. Prabhakar s/o Tukaram Kadam,
Age: 42 years.
84. Dnyaneshwar s/o Sambhaji Kadam,
Age: 27 years,
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85. Eknath s/o Naroba Kadam,
Age: 27 years
86. Gajanan s/o Vyankati Kadam,
Age: 22 years,
87. Dnyaneshwar s/o Ganesh Kadam,
Age: 21 years,
88. Chudaji s/o Baburao Kadam,
Age: 42 years,
89. Datta s/o Namdeo Giri,
Age: 25 years,
90. Vishwanath s/o Vitthalrao Kadam,
Age: 35 years,
91. Chandrakant Motiram Kadam,
Age: 23 years,
92. Vishwas s/o Vishwanth Kadam,
Age: 22 years,
93. Ananda s/o Ahilaji Kadam,
Age: 20 years,
94. Balaji s/o Umaji Kadam,
Age: 43 years,
95. Chandu s/o Vitthal Kadam,
Age: 44 years,
96. Govind s/o Narayan Kadam,
Age: 22 years,
97. Deorao s/o Shripati Kadam,
Age: 25 years,
98. Subhash s/o Digambar Walke,
Age: 46 years,
99. Sachin s/o Subhash Walke,
Age: 23 years,
100. Vishnu s/o Subhash Walke,
Age: 20 years,
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Occupation of all Agriculture and
All R/o: Village Degaon (Kurhada)
Taluka Ardhapur, District Nanded. ...APPLICANTS
versus
1. The State of Maharashtra
Through the Police Inspector,
Ardhapur Police Station, Ardhapur,
Taluka: Ardhapur, District Nanded.
2. Devidar s/o Lohaji Atkore,
Age: 42 years, Occu: Labourer,
R/o : Village Degaon (Kurhada)
Taluka : Ardhapur, District Nanded. ...RESPONDENTS
....
Mr. R.S. Deshmukh, Advocate for applicants
Mr. M.M. Nerlikar, APP for Respondent No. 1 - State
Mr. M.R. Jamdhade and Mr. K.R. Jamdhade, Advocate for respondent No. 2
....
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 14th FEBRUARY, 2017.
PRONOUNCED ON : 8th MARCH, 2017.
ORAL JUDGMENT :- (Per : K.K. Sonawane, J.)
1] Rule. Rule made returnable forthwith. The matter is taken up for final
hearing with the consent of parties.
2] The applicants, taking recourse of remedy under section 482 of the
Criminal Procedure Code ( for short "Cr.P.C."), assailed the validity, legality
and propriety of the registration of First Information Report ( for short "FIR")
vide crime No. 81 of 2016 being an second FIR relating to the same cause of
action, same incident and occurred during the same transaction. The
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applicants prayed to quash and set aside the impugned FIR vide Crime No. 81
of 2016 registered at Ardhapur Police Station, District Nanded, for the
offence punishable under sections 307, 341, 336, 324, 506, 147, 148 read
with section 149 of the Indian Penal Code ( for short "IPC") and 3(1)(R)(5)
and 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short "Atrocities Act").
3] The facts giving rise to the present application in brief are that on the
day of incident occurred on 03-05-2016, the members of the scheduled Caste
and Scheduled Tribe community (for short "SC/ST") were celebrating 125 th
Anniversary of Dr. Babasaheb Ambedkar in the village. They had also
obtained legal permission for procession from concerned authority. But some
of the villagers of upper caste raised objection for celebration and
procession of 125th Anniversary of Dr. Babasaheb Ambedkar. It created
communal tension and fragile atmosphere in the village. Therefore, Police
Bandobast was deployed to monitor the law and order problem. A
programme of celebrating 125th Anniversary of Dr. Babasaheb Ambedkar was
commenced in the village since noon hours at about 12.00 on 03-05-2016. It
has been alleged that the applicant Eknath Rangnath Kadam (corrected
name Eknath s/o Rangrao Kadam), Chairman and applicant - Bhagwan
Bhimrao Kadam, Sarpanch of the village and their accomplices were opposing
to celebrate Anniversary of Dr. Babasaheb Ambedkar in the village. They
started instigating and provoking the villagers. The police personnel
deployed on Bandobast duty made endeavour to give them understanding to
refrain themselves from spreading hatred against members of SC/ST
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community in the village. But they were not in a condition to listen. They
were also giving threats that, in case, any penal action is initiated against
them, they will take law in their hands and set the entire village on fire.
However, at 4.15 p.m. applicant Eknath Kadam, Chairman and applicant -
Bhagwan Bhimrao, Sarpanch of the village and their accomplices in all 400 to
500 in numbers formed the unlawful assembly with an object to assault
members of SC/ST community of the village and to prevent them from
celebrating 125th Anniversary of Dr. Babasaheb Ambedkar in the village. They
started pelting stones on the police. In order to disperse the miscreants
police applied 'lathi-charge' and made endeavour to control the mob. But the
mob became berserk and started causing damages to the police vehicle.
They smashed the glasses of Police Vehicle. It cause communal tension in
the village. Police opened the fire and lobbed tear gas cells towards the
mob. But, all efforts of police found unavailing. In the riot some of the
Police Personnel received serious injuries. The miscreants flung the boulder
on the head of the Police Personnel from roof of the house. Police fired
empty bullet (dummy round) as well as rubber bullet. But, the miscreants
gave threats to life to the Police. They were armed with iron pipes, sticks
and stones etc. Eventually, Police opened the fire from rifle of Police
Personnel. Thereafter, the miscreants started escaping from the spot. The
police apprehended some of the miscreants red handed on the spot. Police
Inspector Shri Satish Dattatraya Gaikwad, who was on duty for Bandobast in
the village returned to the Police Station and on the following day i.e. on 04-
05-2016 at about 10.26 a.m. he filed the FIR for penal action against
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applicants and other miscreants.
4] Pursuant to the FIR of PI Gaikwad, concerned PSO of Ardhapur Police
Station registered the crime No. 80 of 2016 under section 147, 148, 307, 353,
332, 333, 336 and 504, 506 read with section 149 of the IPC as well as
Section 3 of the Damage to the Public Property, 1984 and set the
investigation in motion.
5] Meanwhile, pending the investigation of Crime No. 80 of 2016 another
FIR of Shri Devidas Lobhaji Atkore vide crime No. 81 of 2016 came to be
lodged on 04-05-2016 about at 12.42 p.m in the Ardhapur Police Station. He
ventilated the grievance in regard to murderous assault in the riot as well as
castiest abuses to insult and humiliate the members of SC/ST community of
the village within public view. It has been alleged that when leaders were
addressing gathering for maintaining peace in the procession of Dr.
Babasaheb Ambedkar, the members of upper caste of the village arrived at
Venue from the back side of Statute of Dr. Babasaheb Ambedkar. Police tried
to prevent the miscreants, but they did not succeed. The miscreants were
giving slogans "Jai Bhavani, Jai Shivaji". They started to create hurdles in
the function of celebrating 125th Anniversary of Dr. Babasaheb Ambedkar.
They gave threats to life to the complainant and his associates. They also
hurled abuses on caste to insult and humiliate the members of the SC/ST of
the village within a public view. The miscreants created communal terror in
the village and pelted stones. The complainant and others received injuries
in the melee. Thereafter, the first informant - Devidas rushed to the Police
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Station and filed the FIR. The concerned PSO immediately registered the
Crime No. 81 of 2016 and swung into action.
6] The applicant put in question the validity, legality and propriety of the
impugned FIR filed by the first informant Devidas Atkore, being second FIR
of the same incident, on same cause of action and sameness in the
occurrence of incident mentioned in the earlier FIR No. 80 of 2016.
Therefore, the applicants knocked the door of this court by invoking remedy
under section 482 of the Cr.P.C. and prayed to quash and set aside the
second FIR registered against them.
7] Mr. Deshmukh, learned counsel appearing for the applicants scathingly
assailed that the impugned FIR is not sustainable, appreciable and it is an
abuse of process of law. There is no prima facie circumstance reflects from
the FIR to nail the applicants in this case for the charges pitted against
them. The alleged FIR is filed with an ill intention and purported motivation
to harass the applicants. The impugned FIR is lodged on 04-05-2016 after
lodging the first FIR vide Crime No. 80 of 2016. Therefore, second FIR of the
same incident is bad-in-law. The learned counsel for the applicants
explained the circumstances on record in detail and urged that second FIR
on same set of facts and occurrence is not sustainable and required to be
quashed and set aside by exercising powers under section 482 of the Cr.P.C.
In support of his contention, the learned counsel for the applicants relied on
the expositions of law in the cases of T.T. Antony Vs. State of Maharashtra
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and connected matters1, Babubhai Vs. State of Gujrath and connected
matters2, Chirra Shivraj Vs. State of Andhra Pradesh 3 and Amitbhai
Anilchandra Shah Vs. Central Bureau of Investigation and another 4
8] Per contra, learned APP for the State and learned counsel appearing
for respondent No. 2- first informant -Devidas Atkore of the impugned FIR
vide Crime No. 81 of 2016, vociferously opposed the contentions put forth
on behalf of applicants. They submitted that present application is not
maintainable within purview of law. There is no reasonable ground to quash
and set aside the impugned FIR. In contrast, the allegations nurtured in the
FIR prima facie make out the case against the applicants for registration of
cognizable offence. There was an procession in the village on account of
celebrating 125th Anniversary of Dr. Babasaheb Ambedkar on 03-05-2016 and
the members of SC/ST community of the village assembled near Statue of
Dr. Babasaheb Ambedkar to participate in the procession. The leaders were
addressing them to maintain the peace and harmony during the procession.
But, suddenly at about 4.00 p.m. applicants and their accomplices from
Maratha community arrived at the spot of function and started pelting
stones. The villagers of SC/ST community as well as police received fatal
injuries. The applicants and their accomplices hurled abuses on caste to the
complainant and other members of SC/ST community to insult and humiliate
them within public view. Therefore, learned APP appearing for respondent
No. 1- State and learned counsel appearing for respondent No. 2 fervidly
1 (2001)6 SCC, 181
2 (2010) 12 SCC 254
3 (2010) 14 SCC 144
4 2013 Cri.L.J. 2313.
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contended that it would unjust and improper to set aside and quash the
impugned FIR under the pretext of second FIR of the same incident. They
explained that alleged incident verbalized in the impugned FIR is totally
separate and distinct from the incident mentioned in the first FIR. It cannot
be said that there is sameness in both the FIRs. The alleged incidents
referred to in both the FIRs are not of the same incident nor arose from the
same cause of action. Therefore, it cannot be considered as FIR would
create anomalous situation. According to learned APP, the scope of enquiry
of both the FIRs are totally different and based on distinct circumstances
occurred at the spot of incident. Both the FIRs disclose different set of
offences committed at different times and against different persons.
According to learned APP and leaned counsel for respondent No. 2, there is
no propriety to set aside and quash the impugned FIR by exercising inherent
powers under section 482 of the Cr.P.C. In support of the arguments, learned
APP placed his reliance on judicial pronouncement in the cases of Anju
Chaudhary Vs. State of U.P. And another 5, Surendra Kaushik and others Vs.
State of Uttar Pradesh6, Ramlal Narang Vs. State, Delhi Administration 7 and
Babubhai Vs. State of Gujrath and others.8
9] We have considered the rival submissions made on behalf of
respective learned counsel appearing for the parties. We have also delved
into the relevant documents produced on record. At the outset, it is worth
to mention that applicants have invoked the remedy under Section 482 of
5 2012 DGLS(Soft) 688 : 2013(6) SCC 384
6 Criminal Appeal No. 305 of 2013
7 1979 DGL Soft 11 : 1979(2) SCC 322
8 2010 (12) SCC 254
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Cr.P.C. to quash and set aside the impugned FIR vide Crime No. 81 of 2016 on
two counts :-
[I] That, there is no prima facie case made out against the
applicant, sufficient to set the penal law in motion;
[ii] That since the first FIR of Crime No. 80 of 2016 has already
been registered on the allegation of occurrence of one and the same
incident and same cause of action, the second FIR could not have been
registered for penal action against the applicants which would be violative of
principles of double jeopardy.
10] At this juncture, the minute scrutiny of the allegations nurtured
against the applicants in the impugned FIR vide Crime No. 81 of 2016 reflects
that there is a prima facie case against the applicants to set the criminal law
in motion. The first informant - Devidas has in candid manner attributed the
overt acts and participation of the applicants and their accomplices in the
alleged incident. He has also disclosed about the castiest allegations hurled
on the part of applicants to insult and humiliate the first informant and his
associates within public view. Therefore, it would be improper and unjust to
draw an inference that the impugned FIR has no substance but it is an abuse
of process of law. If the allegations in the impugned FIR are taken at its face
value and considered in its entirety, it would point out the commission of a
cognizable offence. Moreover, at the initial stage of investigation, it would
hard to believe that the impugned FIR came to be filed with alterior motive
to embroil the applicants by making false allegations on the part of First
informant - Devidas. In the aftermath, we are not prepared to quash and
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set aside the impugned FIR on the ground of abuse of process of law. It
cannot be said that there is no prima facie case against the applicants for
investigation of the allegations pitted against them in relation to commission
of cognizable offence. Therefore, we are not inclined to nod in favour of
applicants to exercise the inherent powers to quash and set aside the
impugned FIR.
11] Now, turning to the another spectrum of the matter, in regard to the
pivotal question, as to whether there can be more than one FIR, in relation
to the same incident or different incidents arising from the same
occurrence, it is imperative to have a glance on the relevant provisions of
Cr.P.C. pertaining to receipts of complaints of cognizable offence, its
registration and procedure prescribed for its investigation which culminates
into filing of the police report to the concerned Magistrate for further legal
process. It would facilitate to appreciate the issue in proper manner.
12] Chapter XII of the Code, deals with the information to the
police and their powers to investigate. Section 154 of the Cr.P.C.
contemplates that there has to be a FIR about the incident which constitute
a cognizable offence. It further provides that every information relating to
commission of cognizable offence, whether given orally or otherwise to the
Officer in-charge of the police station, has to be reduced into writing by or
under his own direction and be read over to the informant. The FIR recorded
shall be signed by the person giving such information and substance of the
same is required to be entered into a book to be kept by such Officer in such
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form as the State Government may prescribe. The provisions of Section
156(3) of the Code postulates directions to the Officer Incharge of the police
station to conduct the investigation by the order of the Magistrate in order
to take cognizance of the same under Section 190 of the Cr.P.C. The
specified magistrate, upon receiving the complaints of facts which constitute
such offence, upon a police report of such facts, upon information received
from any person other than police officer, or upon his own knowledge that
such offence has been committed, is empowered to take cognizance of any
offence. The Scheme of Section 154,156 and 190 of the Code does not
recognize more than one FIR about the occurrence. The very purpose of
registration of FIR is to set the criminal investigation into motion which
would culminates in filing of a police report under section 173 of the Code.
13] In the matter of T.T. Antony vs. State of Kerala and others,
reported in (2001)6 SCC 181, the Honourable Apex Court, observed as
under :-
"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 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) 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
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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
Cr.P.C. or under Articles 226/227 of the Constitution."
14] In T.T. Antony's case mentioned above, it has been held that the
registration of another FIR in respect of very same incident as an FIR u/s 154
of Cr.P.C. was not valid and liable to be quashed. The earliest or the first
information in regard to commission of cognizable offence only be treated as
FIR u/s. 154 of Cr.P.C. Therefore, there cannot be second FIR and
consequently no fresh investigation on receipt of subsequent information of
the same cognizable offence.
15] In the case of Babubhai vs. State of Gujarat reported in (2006)
12 SCC 254, the Honourable Apex Court, had an occasion to consider various
judicial pronouncements on the question of registration of subsequent FIR in
connection with the same or connected offences, and elucidated the same in
para.Nos. 16 to 19, which read thus :-
"16. In Upkar Singh Vs. Ved Prakash 3, this Court considered
the judgment in T.T. Antony2 and explained that the
judgment in the said case does not exclude the registration
of a complaint in the nature of counterclaim from the
purview of the court. What had been laid down by this Court
in the aforesaid case is that any further complaint by the
same complainant against the same accused, subsequent to
the registration of a case, is prohibited under the Cr.P.C.
because an investigation in this regard would have already
3 (2004) 13 SCC 292
2 (2001) 6 SCC 181
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started and further the complaint against the same accused
will amount to an improvement on the facts mentioned in
the original complaint, hence, will be prohibited under
section 162 Cr.P.C. However, this rule will not apply to a
counter claim by the accused in the first complaint or on his
behalf alleging a different version of the said incident. Thus,
in case, there are rival versions in respect of the same
episode, the Investigating Agency would take the same on
two different FIRs and investigation can be carried under
both of them by the same investigating agency and thus,
filing an FIR pertaining to a counterclaim in respect of the
same incident having a different version of events, is
permissible.
17. In Rameshchandra Nandlal Parikh Vs. State of Gujarat 3,
this Court reconsidered the earlier judgment including T.T.
Antony2 and held that in case the FIRs are not in respect of
the same cognizable offence or the same occurrence giving
rise to one or more cognizable offences nor are they alleged
to have been committed in the course of the same
transaction or the same occurrence as the one alleged in
the First FIR, there is no prohibition in accepting the second
FIR.
18. In Nirmal Singh Kahlon Vs. State of Punjab5, this
Court considered a case where an FIR had already been
lodged on 14.6.2002 in respect of the offences committed
by individuals. Subsequently, the matter was handed over
to the Central Bureau of Investigation (CBI), which during
investigation collected huge amount of material and also
recorded statements of large number of persons and the
CBI came to the conclusion that a scam was involved in the
selection process of Panchayat Secretaries. The second FIR
was lodged by the CBI. This Court after appreciating the
evidence, came to the conclusion that matter investigated
by the CBI dealt with a larger conspiracy. Therefore, this
investigation has been on a much wider canvass and held
that second FIR was permissible and required to be
investigated.
19. The Court held as under: (Nirmal Singh Kahlon case
SCC pp.466-67, para 67)
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
3 (2006)1 SCC 732
2 (2001) 6 SCC 181
5 (2009) 1 SCC 441
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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."
(Emphasis added).
16] After analysing the various decisions of the Apex Court in the
aforesaid Babubhai's case, the Hon'ble Supreme Court expressed the view
that the court has to examine the facts and circumstances giving rise to file
FIRs and test of sameness is to be applied to find out whether both the FIRs
relates to the same incident and same occurrence or in regard to incident
which was two or more part of the same transactions. In case the answer is
affirmative, the FIR is liable to be quashed. However, when the version is
different in second FIR and it relates to different incident or crimes, the
second FIR is permissible under law.
17] In Amitbhai Shah Vs. CBI, reported in (2013) Cri.L.J. 2313, it
has been reiterated that second FIR, if in the nature of cross complaint or
counter complaint is permissible, which is an exception carved out in Upkar
Singh's case (supra) to the effect that, when the second FIR consists of
alleged offences which are in the nature of cross-case/cross-complaint or
counter-complaint, such cross-complaint would be permitted as a FIR.
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18] In the case of Anju Chaudhari vs. State of UP 9, it has been held
by the Honourable Supreme Court that the examination of in-built safeguards
provided by the legislature in the very language of Section 154 of the Code is
an significant aspect which can be deduced from the principle akin to the
double-jeopardy, rule of fair investigation and to prevent the abuse of power
by the Investigation Authority of the police. Therefore, the second FIR for
the same incident can not be registered. 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 FIR recorded first, in such circumstances, the second FIR could be
registered.
19] In Criminal Appeal No. 305 of 2013 ( Surendra Kaushik and
others Vs. State of UP) while dealing with the circumstances of registration
of two FIRs on the similar and identical cause of action and allegations, the
Honourable Supreme Court, in para.25, made the following observations :-
"25. In the case at hand, the appellants lodged the FIR
No. 274 of 2012 against four accused persons alleging that
they had prepared fake and fraudulent documents. The
second FIR came to be registered on the basis of the
direction issued by the learned Additional Chief Judicial
Magistrate in exercise of power under Section 156(3) of
the Code at the instance of another person alleging, inter
alia, that he was neither present in the meetings nor had
he signed any of the resolutions of the meetings and the
accused persons, five in number, including the appellant
No. 1 herein, had fabricated documents and filed the same
before the competent authority. FIR No. 442 of 2012
(which gave rise to Crime No. 491 of 2012) was registered
9 (2013)6 SCC 384
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because of an order passed by the learned Magistrate. Be
it noted, the complaint was filed by another member of
the Governing Body of the Society and the allegation was
that the accused persons, twelve in number, had entered
into a conspiracy and prepared forged documents relating
to the meetings held on different dates. There was
allegation and fabrication of the signatures of the
members and filing of forged documents before the
Registrar of Societies with the common intention to grab
the property/funds of the society. If the involvement of
the number of accused persons and the nature of the
allegations are scrutinized, it becomes crystal clear that
every FIR has a different spectrum. The allegations made
are distinct and separate. It may be regarded as a counter
complaint and cannot be stated that an effort has been
made to improve the allegations that find place in the first
FIR. It is well-nigh impossible to say that the principle of
sameness gets attracted. We are inclined to think so, for
if the said principle is made applicable to the case at hand
and the investigation is scuttled by quashing the FIRs, the
complainants in the other two FIRs would be deprived of
justice. The appellants have lodged the FIR making the
allegations against certain persons, but that does not
debar the other aggrieved persons to move the court for
direction of registration of an FIR as there have been other
accused persons including the complainant in the first FIR
involved in the forgery and fabrication of documents and
getting benefits from the statutory authority. In the
ultimate eventuate, how the trial would commence and be
concluded is up to the concerned court. The appellants or
any of the other complainants or the accused persons may
move the appropriate court for a trial in one court. That
is another aspect altogether. But to say that it is a second
FIR relating to the same cause of action and the same
incident and there is sameness of occurrence and an
attempt has been made to improvise the case is not
correct. Hence, we conclude and hold that the submission
that the FIR lodged by the fourth respondent is a second
FIR and is, therefore, liable to the quashed, does not
merit acceptance."
20] We would reiterate that there cannot be two FIRs registered in
relation to the same occurrence or incidents or different incident forming
part of the same transaction. Therefore, the act of registration of second FIR
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of same occurrence/incident is contrary to law and very spirit of section 154
of the Cr.P.C. However, when the incident is separate, offences are similar or
different or even where the subsequent crime is of such magnitude that it
would not fall within the ambit and scope of the FIR recorded earlier, then
the second FIR is required to be registered for investigation. The ultimate
object of registration of FIR is to find out whether there was commission of
alleged cognizable offences and if so who are the culprits. No any aggrieved
victim of the crime should be precluded from his legitimate right to lodge
FIR to book the real culprits of the crime.
21] While dealing with the issue in the case of Anju Choudhary
(supra), Their Lordships of the Hon'ble Supreme Court made reference of
observations in the case of Kari Choudhary Vs. Sita Devi 2002(1) SCC 714 by
giving hypothetical illustrations, explained the very object and purport of
the relevant provisions of the Cr.P.C, which reads as under:
"23. Be that as it may, if the law laid down by this
Court in T.T. Antony case is to be accepted as holding
that a second complaint in regard to the same
incident filed as a counter-complaint is prohibited
under the Code, then in our opinion, such conclusion
would lead to serious consequences. This will be clear
from the hypothetical example given herein below
i.e. if in regard to a crime committed by the real
accused he takes the first opportunity to lodge a false
complaint and the same is registered by the
jurisdictional police then the aggrieved victim of such
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crime will be precluded from lodging a complaint
giving his version of the incident in question,
consequently he will be deprived of his legitimate
right to bring the real accused to book. This cannot be
the purport of the Code."
22] It is settled principle of law that issue of sustainability of two FIR
has to be examined on merits of each case, whether a subsequently
registered FIR is a second FIR about the same incident or offence or is based
on distinct and different set of facts and whether its scope of inquiry is
totally different and not identical one. There would not be any straight-
jacket formula to be applied uniformly to all cases. It will always be a
mixed question of law and facts depending on the merits of a given case
( emphasis supplied on Anju Chudhary's case 2013(6) SCC 384).
23] Now, in the instant case,we should examine the facts of the present
case in the light of settled legal provisions as referred supra. If the recitals
of both the FIRs are perused together and compared with each others, it
would find that the FIR giving rise to crime No. 80 of 2016, was filed by the
Police Inspector Shri Satish Gaikwad on 04-05-2016 at 10.26 a.m. for the
offence punishable under sections 307, 353, 336, 147, 148 read with section
149 of the IPC. The place of crime was shown near Hanuman Temple on the
public road in village Degaon. He has figured in all 200-300 miscreants for
alleged crime of rioting and attempt to murder of police personnels etc.
The complainant mentioned the names of in all 15 accused out of 200-300
accused in his FIR registered at the first point of time. It has been alleged
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that the accused committed the offence of rioting with deadly weapons and
attacked the police personnels by pelting stones and boulder from the roof
of their houses. They smashed the glasses and caused damage to the police
vehicle. The alleged accused used the criminal force to deter the police
personnels from discharging their duties.
24] However, the recitals of FIR filed by the first informant Devidas
Atkore for giving cause to register the another crime no. 81 of 2016, reflects
that the impugned FIR is lodged on 4.5.2016 at about 12.42 p.m. for the
allegations of commission of cognizable offences under section 307, 341,
324, 147, 148 read with section 149 of IPC and 3(1)(R)(F) and 3(2)(5)of the
Atrocities Act. The place of offence is shown in front of statue of Dr.
Babasaheb Ambedkar in the village Degaon. The first informant Devidas
Atkore mentioned in all 32 accused including Applicants no. 1 and 2 in the
impugned FIR for commission of crime. It has been alleged that on the day
of incident at about 4.15 p.m. when speakers were addressing the gathering
for maintaining peace and harmony in the procession, that time the alleged
accused arrived in front of statue of Dr. Babasaheb Ambedkar and started
giving slogans "Jai Bhavani Jai Shivaji". They opposed for procession and to
celebrate 125th Anniversary of Dr. Babasaheb Ambedkar. The miscreants
pelted the stones and caused serious injuries to the members of SC/ST of
the village and police personnels. They hurled the castiest abuses to
complainant and others on their caste and insulted and humiliate them
within public view. There were threats to life to the complainant and
others.
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25] The comparison of facts and circumstances mentioned in both the FIR
would goes to show that, in totality there were two different FIRs filed by
two different informant relating to occurrence of different cognizable
offence against the different persons. Except applicant no. 1 Eknath and
applicant no.2 Bhagwan Kadam, who are the leaders, being Chairman and
Sarpanch of the village and they were seen prominently in the mob, rest of
the accused are different in both the FIRs. The investigation of first crime is
in no way dependent upon the investigation of second crime which is
registered for the offence under Atrocities Act, for castiest abuses etc. It is
also necessary to take into consideration that the requirement of proof in
both the FIRs also appears completely different and distinct one. Therefore,
lodging of subsequent FIR cannot be termed as second FIR for the same
occurrence or incident narrated in the FIR registered first. The allegations
nurtured in both the FIR are from different spectrum against the different
accused. The ingredients of offences shown committed in both the FIRs are
having some what overlapping features in regard to assault with deadly
weapon. But, it does not mean that it has an characteristic of similarity. It
would unjust and improper to scuttle the investigation by the Police on
adopting such restricted and technical view to pave the escape route for the
alleged culprits of the crime. Definitely, it would cause injustice and
prejudice to the aggrieved victim of the crime.
26] It is true that law does not permit second FIR for the same cause of
action, only because the principle of law does not allow that the person
should be vexed twice. But, if there are offences having different and
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distinct character and ingredients, even if there are some overlapping
features, it would not violate the principles of Article 20 of the Constitution
of India. The subsequent FIR filed by the first informant Shri Devidas
Atkore should be treated as separate FIR for all purpose including the
investigation under the provisions of the Cr.P.C. The canvas of impugned two
FIRs, are totally different and not identical one. The subsequent FIR is
pertains to allegation of offence under Atrocities Act, which are serious in
nature. It has such magnitude, that does not fall within the ambit and scope
of inquiry of the FIR recorded first.
27] No doubt, the FIR is a very important document as well as it sets the
criminal law in motion. The entire edifice of the prosecution case is always
rests on the allegation made in the FIR. In the present case, the information
of commission of offence under Atrocities Act came to be lodged on receipt
of first information report from the informant Shri Devidas Atkore, who has
an legitimate right to file FIR being members of SC/ST community and one
of the victim of crime. The object of commission of crime shown in
subsequent FIR was not similar as compare to the earlier FIR. In such
eventuality in case, he is not allowed to filed FIR for investigation, it would
cause injustice and prejudice to the real victim of the crime and he may be
precluded from seeking justice. Therefore, subsequent FIR is essential to be
investigated separately to collect the evidence separately by the
Investigating Officer so that the aggrieved victim would not be deprived of
justice. The involvement of number of different accused and distinct nature
of allegations made in the FIR registered later-on, are indicative of the fact
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that there would not be any attempt to make improvement in the allegation
that find place in the FIR recorded first.
28] In view of aforesaid circumstances, we are not inclined to quash and
set aside subsequent FIR giving rise to crime No. 81 of 2016 for the charges
of castiest abuses etc. It would not justifiable to prohibit the aggrieved
victim of the crime to lodge separate FIR for commission of distinct
cognizable offence.
29] We propose that respective I.O.'s should continue their investigation in
both FIRs separately for collection of evidence in regard to charges pitted
against applicants/accused. After completion of investigation separately in
both crimes, the Investigating Officer should file final report as prescribed
under the Cr.P.C. However, in case the concerned court received the report
under section 173 of the Cr.P.C, in both the FIRs, it is for the concerned
court how to commence and conclude the trial in both the cases. The trial
of both crimes may be in one court for joint/common trial or it may be
separate in the interest of justice.
30] In such premise, we conclude and hold that the submission on
behalf of applicants that the subsequent FIR of crime No. 81 of 2016 is an
abuse of process of law and being second FIR of the same incident liable to
be quashed and set aside, is not sustainable and acceptable. In sequel, the
application is rejected. Rule stands discharged.
[K.K.SONAWANE] [S.S. SHINDE]
grt/- JUDGE JUDGE
