Nandlal Saw vs The State Of Jharkhand
2024 Latest Caselaw 9140 Jhar

Jharkhand High Court

Nandlal Saw vs The State Of Jharkhand on 11 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 2489 of 2024


            Nandlal Saw, aged about 29 years, son of Kunjlal Saw, resident of
            Village-Dama, Aura, P.O. & P.S.-Bagodar, Dist.-Giridih (Jharkhand)
                                                       ....             Petitioner


                                           Versus

            The State of Jharkhand
                                                       ....                 Opp. Party

                                           PRESENT

                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Mr. Kumar Harsh, Advocate : Mr. Suraj Kishore Prasad, Advocate For the State : Mr. Shailesh Kr. Sinha, Addl. P.P. .....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with a

prayer to quash the entire criminal proceeding including the FIR in

connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024

registered for the offences punishable under Sections 341, 323, 307,

376, 504, 506 and 34 of Indian Penal Code on the ground that the

same is the second FIR in respect of the same occurrence with

improvisation of the allegations made.

3. The brief fact of the case is that the informant-complainant of

Hazaribagh Mufasil P.S. Case No. 76 of 2024 lodged a written report

with the Hazaribagh Mufasil police station alleging that on

10.02.2024 at about 12:43 AM, the petitioner armed with gun and a

packet went to open the door of the informant on which the

informant made a phone call to her neighbour. On hearing the sound

of the phone call, the petitioner climbed over the tank and fled away

from the boundary but while going away told that, on that day the

informant escaped and unless the informant obeys the petitioner, the

petitioner will destroy the door, windows and will also shoot the

informant and nobody can do any harm to the petitioner. The

informant came out from her house after opening the door. The

neighbours came and they intimated to the police over phone. The

police saw the packet which contained three detonators attached

with wires and three pieces gelatin and one piece of paper was also

there in which it was written that the the petitioner is threatening to

kill the informant and her family members. The informant handed

over all the materials to police. The informant also alleged that

animosity between the petitioner and informant was regarding

running of national high school in partnership with the father of the

informant and the petitioner and since then the petitioner is

threatening the informant.

4. On the basis of the said written report, police registered

Hazaribagh Mufasil P.S. Case No. 44 of 2024. Thereafter, the

informant filed Complaint Case No. 807 of 2024 in the court of Chief

Judicial Magistrate, Hazaribagh on 15.03.2024 and the same upon

being referred to police under Section 156 (3) Cr.P.C., the FIR of

Hazaribagh Mufasil P.S. Case No. 76 of 2024 has been registered.

5. In the present FIR the informant has made detailed description of

the occurrences and also added the occurrences which took place on

07.09.2022, 27,11.2023, 03.01.2024 as well as the occurrence of

10.02.2024 in paragraph-9 of the complaint. The complaint, upon

being referred to police under Section 156 (3) Cr.P.C., the FIR of the

case has been registered. In the said complaint, it has also been

mentioned that the complainant filed Hazaribagh Mufasil P.S. Case

No. 44 of 2024. The additional allegation made is that on 12.02.2024

at 08:00 AM, the petitioner attempted to forcibly enter the house of

the informant and told that they will forcibly took the younger son of

the informant namely Prithvi. In paragraph no.11 the allegation has

been made that on 13.02.2024 at about 04:00 pm the petitioner along

with co-accused person entered into house of the informant and

threatened the informant to take back the case instituted by the

informant in the mufassil police station. She reported the matter

again to police by registered post on 19.02.2024 and thereafter filed

the complaint and after the complaint being forwarded to police,

Hazaribagh Mufasil P.S. Case No. 76 of 2024 has been registered.

6. Learned counsel for the petitioner relied upon the judgment of this

Court in the case of Manish Varma & Anr. vs. The State of

Jharkhand & Anr. in Cr.M.P. No. 1735 of 2023 dated 06.05.2023 and

submits that this Court in that case relied upon the judgment of

Hon'ble Supreme Court of India in the case of Krishna Lal Chawla

& others v. State of Uttar Pradesh & Another reported in (2021) 5

SCC 435 paragraph-10 of which reads as under:-

"10. Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case. As this Court has held in Amitbhai Anilchandra

Shah [Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309] , such an absurd and mischievous interpretation of the provisions of the CrPC will not stand the test of constitutional scrutiny, and therefore cannot be adopted by us." (Emphasis supplied)

and submits that therein the Hon'ble Supreme Court of India has

reiterated the settled principle of law that permitting multiple

complaints by the same party in respect of the same incident,

whether it involves a cognizable or private complaint offence, will

lead to the accused being entangled in numerous criminal

proceedings; which is not the mandate of the law.

7. It is next submitted by the learned counsel for the petitioner that in

that case, this Court also relied upon the of Upkar Singh v. Ved

Prakash and Others reported in (2004) 13 SCC 292 paragraph-17

of which reads as under:-

"17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further 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 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident." (Emphasis supplied)

wherein this Court reiterated the settled principle of law that any

further complaint by the same complainant or others against the

same accused, subsequent to the registration of a case, is prohibited

under the Code of Criminal Procedure because an investigation in

this regard would have already started and further 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 of the Code.

8. Learned counsel for the petitioner next submits that in that

judgment this Court also relied upon the judgment of the Hon'ble

Supreme Court of India in the case of Prem Chand Singh vs. State

of Uttar Pradesh & Another reported in (2020) 3 SCC 54

paragraph-11 of which reads as under:-

"11. It is, therefore, apparent that the subject-matter of both the FIRs is the same general power of attorney dated 2-5-1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds."

(Emphasis supplied)

and submits that therein the Hon'ble Supreme Court of India has

reiterated the settled principle of law that if the substratum of the

two F.I.Rs are common, the mere addition of Section 467, 468 and

471 in the subsequent F.I.R cannot be considered as different

ingredients to justify the later F.I.R as being based on different

materials, allegations and grounds.

9. It is also submitted by the learned counsel for the petitioner that

the FIR of Hazaribagh Mufasil P.S. Case No. 76 of 2024 is an

improvisation of the earlier FIR because so far as the offences alleged

prior to 10.02.2024 has already occurred before registration of the

first FIR being Hazaribagh Mufasil P.S. Case No. 44 of 2024 and the

only allegation that on two subsequent occasions, once the petitioner

attempted to enter into the house and threaten and on another

occasion the petitioner entered into the house of the informant and

threatened; is only ornamental allegations which can be taken care of

in the investigation of FIR vide Hazaribagh Mufasil P.S. Case No. 44

of 2024, the investigation of which case is going on and charge sheet

has not yet been submitted and in Hazaribagh Mufasil P.S. Case No.

76 of 2024 also investigation is going on and charge sheet has not yet

been submitted. It is then submitted by the learned counsel for the

petitioner that the admitted case of the informant is that the dispute

between the parties is related to the FIR of the business of running

the school and hence, repeated FIRs has been lodged for the purpose

of wreaking vengeance. Hence, it is submitted that this FIR being the

second FIR in respect of the selfsame occurrence with a little

modification and exaggeration and some additional allegation to

give a cloak of a different FIR, the continuation of the criminal

proceeding in connection with FIR being Hazaribagh Mufasil P.S.

Case No. 76 of 2024 will amount to abuse of process of law.

Therefore, it is submitted that the prayer as made in this criminal

miscellaneous petition be allowed.

10. Learned Additional Public Prosecutor on the other hand opposes

the prayer as made by the petitioner in this criminal miscellaneous

petition and submits that the offences are separate and distinct and

because of the subsequent occurrence which took place on 12.02.2024

and 13.02.2024 the second FIR is also maintainable. It is next

submitted by learned Addl. P.P. that the second FIR is based on

different version and new discoveries. Hence, it is submitted that

this criminal miscellaneous petition being without any merit be

dismissed.

11. Having heard the submissions made at the Bar and after going

through the materials in the record, it is pertinent to mention here

that it is a settled principle of law as has been held by the Hon'ble

Supreme Court of India in the case of T.T. Antony v. State of

Kerala & Others reported in (2001) 6 SCC 181 paragraph-27 of

which reads as under:-

"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 [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] 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." (Emphasis supplied)

that 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.

12. The Hon'ble Supreme Court of India in the case of C.

Muniappan & Others v. State of Tamil Nadu reported in (2010) 9

SCC 567 has referred to the consequent test to find out the second

FIR is for the selfsame occurrence and which has been relied upon

by the Hon'ble Supreme Court of India in the case of Amitbhai

Anilchandra Shah v. Central Bureau of Investigation & Another

reported in (2013) 6 SCC 348.

13. Now coming to the facts of the case, the undisputed fact remains

that both the FIRs has been instituted alleging the occurrence of

10.02.2024 at about 12:00 mid night. In the second FIR, there is

some exaggeration and improvisation of alleged occurrences of

07.09.2022, 27.11.2023 and 03.01.2024 which were also known to

the informant at the time of lodging FIR of Hazaribagh Mufasil P.S.

Case No. 44 of 2024 so the same can by no stretch of imagination can

be said to be new discovery made on factual foundation nor the

same is different version, the same only be termed as exaggeration

and improvisation.

14. So far subsequent occurrence of 12.02.2024 and 13.02.2024 of

threatening the informant is concerned, they are basically allegedly

committed in the course of the same transaction, the facts when

put to continuation test as has been explained in the case of C.

Muniappan & Others v. State of Tamil Nadu (supra), this Court

arrives at the conclusion that the allegations made in the FIR of

Hazaribagh Mufasil P.S. Case No. 76 of 2024 are the offences

committed in continuation of the allegation made in Hazaribagh

Mufasil P.S. Case No. 44 of 2024 and allegedly committed in the

course of the same transaction.

15. Thus, in the considered opinion of this Court, the FIR of

Hazaribagh Mufasil P.S. Case No. 76 of 2024 is the second FIR in

respect of which the FIR of Hazaribagh Mufasil P.S. Case No. 44 of

2024 has been registered. Therefore the same is hit by Section 162 of

Code of Criminal Procedure. Hence, the continuation of the FIR and

the entire criminal proceeding in connection with Hazaribagh

Mufasil P.S. Case No. 76 of 2024 will amount to abuse of process of

law and this is a fit case where the entire criminal proceeding

including the FIR in connection with Hazaribagh Mufasil P.S. Case

No. 76 of 2024 be quashed and set aside qua the petitioner only.

16. Accordingly, the entire criminal proceeding including the FIR in

connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024 is

quashed and set aside qua the petitioner only.

17. In the result, this criminal miscellaneous petition is allowed.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 11th September, 2024 AFR/Sonu-Gunjan/-