Madhya Pradesh High Court
Rakesh Sharma vs The State Of Madhya Pradesh on 7 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7th OF MARCH, 2025
MISC. CRIMINAL CASE No. 21473 of 2024
RAKESH SHARMA
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
Appearance:
Shri Harshit Sharma, Advocate for applicant.
Dr. Anjali Gyanani, Public Prosecutor for respondent No.1/State.
Ms. Jyoti Gautam, Advocate for respondent No.2.
ORDER
This application, under section 482 of the Cr.P.C., has been filed seeking
quashment of FIR in Crime No.306/2024 registered at Police Station Kotwali,
Morena for offences under sections 294 and 505 of IPC.
2. It is submitted by counsel for applicant that complainant lodged an FIR
alleging that he is the resident of Village Silaytha, Post Khaneta. He is a
respectable member of Kirar/Kshatriya community. On 7/5/2024, at about 7 PM,
he received an audio-clip on his whatsapp account. According to that whatsapp
clipping, applicant was addressing Sarpanch Narendra Singh Semil (Jatav) by
using filthy language in the name of mother and sister and Yadav/Kirar
community was being addressed by applicant as Keet (insect), due to which the
members of Yadav-Kirar community are agitated and, therefore, it was alleged
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that members of the Yadav society may get maliced. The aforesaid audio clipping
is with Sunil Yadav, Kuldeep Yadav, Ashok Yadav, Dhruv Yadav, Ramveer Yadav
and Ramraj Yadav, who also are the members of the Society. Accordingly, it was
alleged that by calling the members of Yadav/Kirar community as Keet (insect),
applicant has hurt the social sentiments.
3. Challenging the aforesaid FIR, it is submitted by counsel for applicant that
on similar allegations, Sarpanch namely Narendra Jatav has also lodged an FIR
which has been registered as FIR No.280/2024 at Police Station Civil Line,
Morena. It is submitted that the present FIR is bad in law on two grounds - (i)
there cannot be two FIRs for the same offence; (ii) in the present case, the audio
whatsapp message was not circulated by applicant, but it was circulated by the
Sarpanch and, therefore, the FIR is liable to be quashed.
4. Per contra, application is vehemently opposed by counsel for State, as well
as, by the complainant.
5. Heard, learned counsel for the parties.
6. It is the case of prosecution that while talking to Sarpanch Naresh Singh
Semil (Jatav), applicant had used certain derogatory words with an intention to
hurt the feelings of a particular community and addressed the said community as
Keet (insect). For similar allegations, as well as, for similar incident, FIR
No.280/2024 has already been registered at Police Station Civil Line, Morena.
Whether there can be two FIRs for the same offence or not ?
7. Both the FIRs are based on the same incident, as well as, the same
allegations. FIR in Crime No.280/2024 has been lodged by complainant
Narendra Jatav, whereas, the present FIR has been lodged on the basis of audio
clipping circulated by Narendra Jatav to the members of the Society.
The Supreme Court in the case of State of Rajasthan Vs. Surendra Singh
Rathore decided on 19/02/2025 in SLP(Crl.) No.16358 of 2024 has held as
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under:-
"7. We find that a judgment of this court titled T.T. Antony
(supra) records the position that a second FIR is not
maintainable. The relevant extract is 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)
8. This Rule, however, over the years through judicial
pronouncements, has lent some flexibility. Reference may be
made to:
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8.1 In Anju Chaudhary v. State of U.P. , this Court dealt
with the concept of a second FIR at length. We may
reproduce with profit certain observations as under :
"14. On the plain construction of the language and
scheme of Sections 154, 156 and 190 of the Code, it
cannot be construed or suggested that there can be
more than one FIR about an occurrence. However,
the opening words of Section 154 suggest that every
information relating to commission of a cognizable
offence shall be reduced into writing by the officerin-
charge of a police station. This implies that there has
to be the first information report about an incident
which constitutes a cognizable offence. The purpose
of registering an FIR is to set the machinery of
criminal investigation into motion, which culminates
with filing of the police report in terms of Section
173(2) of the Code. It will, thus, be appropriate to
follow the settled principle that there cannot be two
FIRs registered for the same offence. 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 the FIR recorded first, then a second
FIR could be registered. The most important aspect
is to examine the inbuilt safeguards provided by the
legislature in the very language of Section 154 of the
Code. These safeguards can be safely deduced from
the principle akin to double jeopardy, rule of fair
investigation and further to prevent abuse of power
by the investigating authority of the police.
Therefore, second FIR for the same incident cannot
be registered. Of course, the investigating agency has
no determinative right. It is only a right to investigate
in accordance with the provisions of the Code. The
filing of report upon completion of investigation,
either for cancellation or alleging commission of an
offence, is a matter which once filed before the court
of competent jurisdiction attains a kind of finality as
far as police is concerned, may be in a given case,
subject to the right of further investigation but
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wherever the investigation has been completed and a
person is found to be prima facie guilty of
committing an offence or otherwise, re-examination
by the investigating agency on its own should not be
permitted merely by registering another FIR with
regard to the same offence. If such protection is not
given to a suspect, then possibility of abuse of
investigating powers by the police cannot be ruled
out. It is with this intention in mind that such
interpretation should be given to Section 154 of the
Code, as it would not only further the object of law
but even that of just and fair investigation. More so,
in the backdrop of the settled canons of criminal
jurisprudence, reinvestigation or de novo
investigation is beyond the competence of not only
the investigating agency but even that of the learned
Magistrate. The courts have taken this view
primarily for the reason that it would be opposed to
the scheme of the Code and more particularly
Section 167(2) of the Code. (Ref. Reeta Nag v. State
of W.B. [(2009) 9 SCC 129 : (2009) 3 SCC (Cri)
1051] and Vinay Tyagi v. Irshad Ali [(2013) 5 SCC
762] of the same date.)"
(Emphasis supplied)
8.2 In Kari Choudhary v. Sita Devi7 this Court held :
"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
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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."
(Emphasis supplied)
8.3 The position regarding the second FIR has been clarified
by a Three-Judge Bench of this Court in Upkar Singh v. Ved
Prakash8 . The relevant discussion made in the judgment is
extracted herein below for ready reference :
"21. From the above it is clear that even in regard to
a complaint arising out of a complaint on further
investigation if it was found that there was a larger
conspiracy than the one referred to in the previous
complaint then a further investigation under the court
culminating in another complaint is permissible.
22. A perusal of the judgment of this Court in Ram
Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC
322 : 1979 SCC (Cri) 479] also shows that even in
cases where a prior complaint is already registered, a
counter-complaint is permissible but it goes further
and holds that even in cases where a first complaint is
registered and investigation initiated, it is possible to
file a further complaint by the same complainant
based on the material gathered during the course of
investigation. Of course, this larger proposition of
law laid down in Ram Lal Narang case [(1979) 2
SCC 322 : 1979 SCC (Cri) 479] is not necessary to
be relied on by us in the present case. Suffice it to say
that the discussion in Ram Lal Narang case [(1979) 2
SCC 322 : 1979 SCC (Cri) 479] is in the same line as
found in the judgments in Kari Choudhary [(2002) 1
SCC 714 : 2002 SCC (Cri) 269] and State of Bihar v.
J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri)
272 : AIR 1980 SC 326] . However, it must be
noticed that in T.T. Antony case [(2001) 6 SCC 181 :
2001 SCC (Cri) 1048] , Ram Lal Narang case
[(1979) 2 SCC 322 : 1979 SCC (Cri) 479] was
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noticed but the Court did not express any opinion
either way.
23. Be that as it may, if the law laid down by this
Court in T.T. Antony case [(2001) 6 SCC 181 : 2001
SCC (Cri) 1048] 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 hereinbelow 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 crime will be
precluded from lodging a complaint giving his
version of the incident in question, consequently he
will be deprived of his legitimated right to bring the
real accused to book. This cannot be the purport of
the Code.
24. We have already noticed that in T.T. Antony case
[(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] this Court
did not consider the legal right of an aggrieved
person to file counterclaim, on the contrary from the
observations found in the said judgment it clearly
indicates that filing a counter-complaint is
permissible."
(Emphasis supplied)
8.4 In Babubhai (supra), it was observed that :
"21. In such a case the court has to examine the facts
and circumstances giving rise to both the FIRs and
the test of sameness is to be applied to find out
whether both the FIRs relate to the same incident in
respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same
transaction. If the answer is in the affirmative, the
second FIR is liable to be quashed. However, in case,
the contrary is proved, where the version in the
second FIR is different and they are in respect of the
two different incidents/crimes, the second FIR is
permissible. In case in respect of the same incident
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the accused in the first FIR comes forward with a
different version or counterclaim, investigation on
both the FIRs has to be conducted."
(Emphasis supplied)
8.5 In Nirmal Singh Kahlon v. State of Punjab this Court held,
in the following terms that when a new discovery is made, the
second FIR would be maintainable. It was said as follows :
"67. The second FIR, in our opinion, would be
maintainable not only because there were different
versions but when new discovery is made on factual
foundations. Discoveries may be made by the police
authorities at a subsequent stage. Discovery about a
larger conspiracy can also surface in another
proceeding, as for example, in a case of this nature. If
the police authorities did not make a fair
investigation and left out conspiracy aspect of the
matter from the purview of its investigation, in our
opinion, as and when the same surfaced, it was open
to the State and/or the High Court to direct
investigation in respect of an offence which is
distinct and separate from the one for which the FIR
had already been lodged."
(Emphasis supplied)
8.6 Apart from these judgments, reference can also be made to
Ram Lal Narang v. State (Delhi Admn.); Surender Kaushik v.
State of U.P.; and P. Sreekumar v. State of Kerala.
9. From the above conspectus of judgments, inter alia, the
following principles emerge regarding the permissibility of the
registration of a second FIR:
9.1 When the second FIR is counter-complaint or
presents a rival version of a set of facts, in reference
to which an earlier FIR already stands registered.
9.2 When the ambit of the two FIRs is different even
though they may arise from the same set of
circumstances.
9.3 When investigation and/or other avenues reveal
the earlier FIR or set of facts to be part of a larger
conspiracy.
9.4 When investigation and/or persons related to the
incident bring to the light hitherto unknown facts or
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circumstances.
9.5 Where the incident is separate; offences are
similar or different."
8. If the facts and circumstances of the case are considered in the light of
judgment passed by Supreme Court in the case of Surendra Singh Rathore
(Supra), it is clear that this FIR was lodged on the basis of audio-clipping
circulated by Narendra Jatav. Although in the FIR it was not mentioned by
complainant that the audio-clipping was sent by Narendra Jatav, but in his
statement recorded under section 161 of Cr.P.C., it was specifically mentioned
that on 7/5/2024, the audio-clipping was sent by Narendra Jatav to the
complainant from his mobile no. 7987662791. Similarly Narendra Jatav has also
stated that his wife is the Sarpanch and a dispute took place with the applicant and
accordingly applicant had abused him filthily in the name of mother and sister
and had also addressed the Kirar society as Keet (insect) and, accordingly, he had
forwarded the said audio-clipping to Manoj Kirar on his mobile no. 8889642382.
9. Thus, it is clear that the audio-clipping was circulated by the person with
whom the hot talks of applicant took place. However, one thing is clear that
police has not registered this case under any of the provisions of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act. The abusive
language which applicant is alleged to have used against Narendra Semil (Jatav)
was not spoken in any public place or in an area near any public place.
Furthermore, there is no allegation that the words uttered by applicant were to the
annoyance of others which were communicated by Narendra Jatav himself to his
fellow society persons and, thus, it cannot be said that offence under section 294
of IPC is made out.
10. So far as the offence under section 505 of IPC is concerned, as already
pointed out, the audio-clipping was not circulated by applicant, but it was
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circulated by the person with whom during hot talks, applicant had uttered certain
words. Section 505 of IPC reads as under:-
"505. Statements conducing to public mischief.--
(1) Whoever makes, publishes or circulates any statement, rumour
or report,--
(a) with intent to cause, or which is likely to cause, any officer,
soldier, sailor or airman in the Army, Navy or Air Force of India
to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or
alarm to the public, or to any section of the public whereby any
person may be induced to commit an offence against the State
or against the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or
community of persons to commit any offence against any other
class or community,
shall be punished with imprisonment which may extend to three
years, or with fine, or with both.
(2) Statements creating or promoting enmity, hatred or ill-will
between classes.-- Whoever makes, publishes or circulates any
statement or report containing rumour or alarming news with intent to
create or promote, or which is likely to create or promote, on grounds
of religion, race, place of birth, residence, language, caste or
community or any other ground whatsoever, feelings of enmity, hatred
or ill-will between different religious, racial, language or regional
groups or castes or communities, shall be punished with imprisonment
which may extend to three years, or with fine, or with both.
(3) Offence under sub-section (2) committed in place of worship,
etc.-- Whoever commits an offence specified in sub-section (2) in
any place of worship or in an assembly engaged in the performance of
religious worship or religious ceremonies, shall be punished with
imprisonment which may extend to five years and shall also be liable
to fine.
(Exception)-- It does not amount to an offence, within the meaning of
this section when the person making, publishing or circulating any
such statement, rumour or report, has reasonable grounds for
believing that such statement, rumour or report is true and makes,
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publishes or circulates it in good faith and without any such intent as
aforesaid."
11. The primary requirement of this section is that any person who makes,
publishes or circulates any statement, rumor or report, with intention to cause or
which is likely to cause fear or alarm to public, or with intention to incite or
which is likely to incite any class or community of persons to commit any offence
against any other class or community, will be guilty of an offence under section
505 of IPC.
12. It is true that applicant had not circulated the statement by sending the
audio-clipping, but he made a statement which is likely to incite any class or
community of persons to commit any offence against any other class or
community of persons, therefore, offence under section 505, IPC is made out.
Whether this FIR is bad on account of second FIR for the same offence
or not ?
13. This Court has already held that prima facie offence under section 294, IPC
is not made out, but has also held that offence under section 505, IPC is prima
facie made out. So far as FIR in Crime No.280/2024 is concerned, offence under
section 505, IPC has not been registered. Furthermore, the offence under S.505,
IPC is to check an act which is likely to incite the members of a community,
whereas Crime No.280/2024 was registered with regard to abusive language
uttered by the applicant while talking to complainant Narendra Jatav. Under these
circumstances, it cannot be said that the FIR for offence under section 505 of IPC
is second in number. The nature of offences in the present FIR are completely
different from the nature of offences in the FIR registered at Crime No.280/2024.
Accordingly, it is held that registration of offence under section 505, IPC is not
bad in law on any ground.
14. Accordingly, this application is partially allowed and offence under
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section 294 of IPC in Crime No.306/2024 at Police Station Kotwali, Morena is,
hereby, quashed. However, police is directed to proceed further with the
investigation in respect of offence under section 505 of IPC.
15. The interim order dated 28/5/2024 is, hereby, vacated.
(G.S. Ahluwalia)
Judge
(and)
