Rakesh and Others vs State of U.P. and Another

S.C. Agarwal, J.—This revision u/s 397/401 Code of Criminal Procedure is directed against the order dated 8.9.2010 passed by the C.J.M., Shahjahanpur in Criminal Case No. 7137 of 2009 (kamal Kishore v. Rakesh and others), P.S. Roza, District-Shahjahanpur, whereby the revisionists Rakesh, Vishwambhar Dayal, Mundan and Babu were summoned to face trial under Sections 302/34, 504 IPC.

Counter and rejoinder affidavit have been exchanged between the parties.

Heard Sri Manish Tiwari, learned Counsel for the revisionists, Sri Radhey Shyam Shukla, learned Counsel for opposite party No. 2 as well as learned AGA appearing on behalf of the State of U.P.

Learned Counsel for the revisionists submitted that the FIR in this case was lodged by opposite party No. 2 against the revisionists but after investigation, the revisionists were found to be innocent and involvement of Ram Autar (brother of the complainant-opposite party No. 2) came to light and police submitted charge-sheet against the Ram Autar under Sections 302, 504 IPC. It is further submitted that in this incident, Smt. Seema wife of complainant was murdered by brother of the complainant and a false FIR was lodged against the revisionists but after investigation, true facts came to light. Subsequently, the complainant filed a criminal complaint wherein opposite party No. 2 was examined u/s 200 Code of Criminal Procedure and Ram Autar was examined u/s 202 Code of Criminal Procedure and by impugned order, learned Magistrate summoned the revisionists. The contention is that in respect of the same incident, two prosecutions cannot proceed simultaneously. Once the FIR lodged by opposite party No. 2 was found to be false and charge-sheet was submitted against Ram Autar, it was not open for the complainant to lodge complaint case on the basis of same facts and the opposite party No. 2 would have an opportunity to lead evidence and to move an application u/s 319 Code of Criminal Procedure, if required, in the sessions trial pending against Ram Autar.

Per contra, learned Counsel for the complainant submitted that the police, from the very beginning, colluded with the accused persons (revisionists) and deliberately disbelieved the testimony of complainant and other witnesses recorded during the course of investigation and charge-sheet against Ram Autar was filed on the basis of statements of accused persons recorded in the case diary. The accused named in the FIR were made witnesses in the charge-sheet and in these circumstances, opposite party No. 2 had no other course left except to file a criminal complaint. Learned Counsel further submitted that no second FIR is being lodged by the complainant by improving his case. The facts mentioned in the FIR lodged by the complainant and the facts mentioned in the criminal complaint are the same without any further improvement. Since the police did not investigate the case properly, the complainant had no option but to lodge a criminal case which cannot be said to be barred by any law.

Learned Counsel for the revisionists relied upon a decision of the Apex Court in T.T. Antony Vs. State of Kerala and Others, wherein it was held in para 28 of the judgment:

In our view a case of fresh investigation based on the second or successive FI Rs, 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 u/s 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power u/s 482 Code of Criminal Procedure or under Articles 226/227 of the Constitution.

The decision in the T.T. Antony (supra) was again considered by the three Judge Bench of the Apex Court in Upkar Singh Vs. Ved Prakash and Others, The Court observed that the decision in the T.T. Antony case did not preclude an aggrieved person from filing a counter case. Para 17 of the judgment is as under:

It is clear from the words emphasizes hereinabove in the above quotation, this Court in the case of T.T. Anotny V. State of Kerala and Ors. 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 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 an improvement on the facts mentioned in the original complaint, hence will be prohibited u/s 162 of the code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident.

The aforesaid rulings do not help the revisionists in any manner. The criminal complaint filed by opposite party No. 2 was based on the same facts of which the FIR was lodged. The version was not improved in any manner. During investigation, many Investigating Officers were changed at the instance of parties. The complainant as well as the witnesses cited by him in the FIR, supported the FIR version but for the reasons best known to the Investigating Officer, charge-sheet was not filed against the revisionists but was filed against brother of the complainant citing persons named as accused in the FIR as witnesses. Thus, though the complaint is based on the same FIR but is the counter version of the case set up by the police during investigation. Such a complaint cannot be said to be barred by law. Only lodging of second FIR at the instance of the same complainant is barred. Here, the complainant does not want to file a fresh FIR but dissatisfied with the investigation done by the police, filed a criminal complaint case based on the same FIR, which cannot be said to be barred by Section 154 and 162 Code of Criminal Procedure The complaint case filed by opposite party No. 2 is not a cross version of the earlier FIR but is a cross version of the case set up by the police during investigation. If such a complaint is considered to be barred by law, the complainant would be totally remedy-less, which cannot be the intention of the legislature.

In these circumstances, I am of the view that the submission of learned Counsel for the revisionists that after investigation on the basis of FIR lodged by the opposite party No. 2, a complaint case on the same facts is barred, cannot be accepted. Similarly, there is no force in the submission that during trial against Ram Autar, the complainant would have an opportunity to lead evidence and to move an application u/s 319 Code of Criminal Procedure for summoning the revisionists as accused, if sufficient material exists on the record. In the aforesaid sessions trial , all the accused named in the FIR have been made witnesses. The witnesses cited by opposite party No. 2 in the FIR have not been named as witnesses in the charge-sheet. In these circumstances, no proper opportunity would be available to opposite party No. 2 to lead evidence against the revisionists in the aforesaid sessions trial.

In view of above, the complaint filed by opposite party No. 2 cannot be said to be barred by any provision of law and is maintainable. The summoning order has been passed on the basis of the statements of complainant and his brother Ram Autar, who are eye witness of the incident, recorded under Sections 200 and 202 Code of Criminal Procedure as well as on the basis of statement of his daughter Km. Pinki recorded u/s 164 Code of Criminal Procedure during investigation. On the basis of material available on record, learned Magistrate came to the conclusion that there were sufficient grounds for proceedings against the revisionists. It was alleged in the complaint as well as in the statement of complainant and the witnesses that on 4.1.2009 at about 7.30 a.m., the complainant, his wife Seema (deceased) and brother Ram Autar were sitting beneath the Pakar tree around the camp fire. The revisionists, who had previous enmity with the complainant came there and started hurling abuses. On protest, the revisionist No. 1 Rakesh took out a country made pistol and fired to kill hitting Seema in the back of chest, who died soon after. This version has been reiterated by the complainant in his statement recorded u/s 200 Code of Criminal Procedure and in the statement of Ram Autar recorded u/s 202 Code of Criminal Procedure Similar statement was given by Km. Pinki during investigation recorded u/s 164 Code of Criminal Procedure, a certified copy of which was filed before the Magistrate. I do not find any error or illegality in the order passed by the Magistrate. The complainant filed by the opposite party No. 2 is not a cross case of the FIR version but counter version of the case set up by the police and the case of the complainant has been consistent right from the FIR to the stage of filing of the complaint. I do not find any good ground to interfere with the summoning order passed by the Magistrate and the revision is devoid of merit and is liable to be dismissed.

The revision is dismissed. Interim order dated 24.9.2010 and 25.10.2010 stands vacated. However, it is directed that if the revisionists surrender before the Magistrate concerned within a period of three weeks from today and apply for bail, their prayer for bail be considered by the courts below expeditiously.