Ram Bihari Pandey & Anr vs The State of Bihar & Ors

Heard Mr. P.K. Shahi, learned Senior Advocate assisted by Mr. Ranjeet Kumar, learned Advocate representing the petitioners in both these

applications and Mr. Sandip Kumar, learned Advocate representing the informant-respondent no. 9 as also learned counsel representing the State.

Cr.W.J.C. No. 1009/2017 has been filed by Ram Bihari Pandey and Bhola Nath Prasad Gupta who are, though not named in the First Information

Report under challenge but their names have transpired in course of investigation. Cr. Misc. No. 24537/2017 has been filed by Bimal Kumar Nopani

who is named in the F.I.R. In both the cases the F.I.R. lodged by respondent no. 9 has been sought to be quashed. Both the cases have been clubbed

together by virtue of order dated 12.07.2017 passed by learned co-ordinate Bench of this court in Cr.W.J.C. No. 1009/2017.

The First Information Report being Chhatauni P.S. Case No. 91/2017 registered for the offences under Section 147, 148, 149, 341, 324, 326, 307,

302, 353, 337, 338/120B of the Indian Penal Code has been sought to be quashed on the ground that with regard to the same occurrence Anchala

Adhikari, Motihari had already lodged the F.I.R. being Chhatauni P.S. Case No. 89 of 2017 under Section 147, 148, 149, 341, 323, 337, 338, 332, 333,

353, 307, 326, 427, 120B of the Indian Penal Code.

Learned senior counsel has drawn the attention of this court towards the principles of law enunciated by the Hon’ble Supreme Court in the

case of T.T. Antony Vs. State of Kerala reported in (2001) 6 SCC 181 to submit that a second F.I.R. for the same occurrence and the same incident

cannot be allowed to be registered. Learned senior counsel has taken this court through the contents of the F.I.R. lodged by Choudhary Basant

Kumar Singh, Anchal Adhikari, Motihari wherein according to learned senior counsel the entire sequence of occurrence which took place on

10.04.2017 have been narrated. It is his submission that a bare perusal of the written report submitted by Anchal Adhikari would show that he has

disclosed how the husband of the informant received burn injuries and even some of the persons who were allegedly involved in the occurrence have

been identified and their names have been disclosed.

Learned senior counsel submits that following the principles laid down by the Hon’ble Supreme Court in the case of T.T. Antony (supra), the

second F.I.R. is fit to be quashed.

On the other hand, learned counsel representing the informant (respondent no.9) as well as learned counsel representing the State have opposed the

reliefs prayed for in the writ application. Mr. Sandip Kumar, learned Advocate representing the informant has placed before this court the judgment of

the Hon’ble Supreme Court in the case of P. Sreekumar vs. State of Kerala reported in 2018(2) PLJR (SC) 293. Learned counsel submits that

the F.I.R. as contained in Annexure-1 lodged by the informant (respondent no.9) need not be quashed or need not be interfered with by this court only

on the ground that it relates to the same occurrence.

It is submitted that the ratio of the judgment of the Hon’ble Apex Court in the case of T.T. Antony as canvassed by learned senior counsel

representing the petitioners has to be understood in the light of the reasoned judgment of the Hon’ble Supreme Court in the case of P. Sreekumar

(supra). Reliance has been placed by Mr. Sandip Kumar on paragraph 28 to 33 of the said judgment which are quoted hereunder for ready reference:

 “28. In our opinion, the law on the subject which governs the controversy involved in the appeal is no more res integra and settled by the decision

of this Court (three-Judge Bench) in the case reported in Upkar Singh vs. Ved Prakash & Ors., (2004) 13 SCC 292 and also by the subsequent

decisions.

Their Lordships after examining all the previous case laws on the subject laid down the following proposition of law in the following words

speaking through Justice N. Santosh Hegde:

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 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.

We have already noticed that in T.T. Antony case 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.

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

separate 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.

The aforesaid principle was reiterated by this Court (Two Judge Bench) in Surender Kaushik & Ors. vs. State of U.P. & Ors., (2013) 5 SCC 148

in the following words:

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 b 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.

Keeping the aforesaid principle of law in mind when we examine the facts of the case at hand, we find that the second FIR filed by the appellant

against respondent No.3 though related to the same incident for which the first FIR was filed by respondent No.2 against the appellant, respondent

No.3 and three Bank officials, yet the second FIR being in the nature of a counter-complaint against 13 respondent No.3 was legally maintainable and

could be entertained for being tried on its merits.

In other words, there is no prohibition in law to file the second FIR and once it is filed, such FIR is capable of being taken note of and tried on

merits in accordance with law.

It is for the reasons that firstly, the second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation

would have been somewhat different. Such was not the case here; Second, it was filed by the appellant as a counter-complaint against respondent

No.3; Third, the first FIR was against five persons based on one set of allegations whereas the second FIR was based on the allegations different

from the allegations made in the first FIR; and Lastly, the High Court while quashing the second FIR/charge-sheet did not examine the issue arising in

the case in the light of law laid down by this Court in two aforementioned decisions of this Court in the cases of Upkar Singh (supra) and Surender

Kaushik (supra) and simply referred three decisions of this Court mentioned above wherein this Court has laid down general principle of law relating

to exercise of inherent powers under Section 482 of the Code.â€​

On the strength of the aforesaid view of the Hon’ble Supreme Court it is the submission of Mr. Kumar that at this stage when all the reasons

stated by Hon’ble Supreme Patna High Court Cr. WJC No.1009 of 2017 dt.18-05-2018 10 Court in paragraph 33 of the judgment are available in

the present case as well, it would not be just and proper to quash the second F.I.R. (Annexure-1).

Having heard learned senior counsel for the petitioners as well as learned counsel representing the State and the private respondent and after going

through the judgments of the Hon’ble Supreme Court referred at the bar, I find that in the present case the second F.I.R. has been lodged by a

person different from one who had lodged the first F.I.R. Further, I find that in the second F.I.R. the informant (respondent no. 9) has given a

different version of the case and a different manner of occurrence which took place on the said date. Further she has made some specific allegations

of conspiracy on the part of the management and accusations have been made naming one of the petitioners and others in the F.I.R. lodged by her

which are not there in the first case registered at the instance of the Anchal Adhikari, Mothiari.

Having found that the respondent no. 9 has lodged the F.I.R. giving a totally different version and manner of occurrence as against the manner of

occurrence reported by the Anchal Adhikari and the investigation is going on, I am of the considered opinion that the ratio of the judgment of the

Hon’ble Apex Court in the case of P. Sreekumar (supra) is duly attracted in the facts of the present case. This being the position. The court is not

willing to quash the second F.I.R. (Annexure-1) on the ground stated-above.

The writ application stands dismissed and the interim orders stands vacated.