Tej Singh and Others vs State of U.P. and Others

Om Prakash-VII, J.—1. This Criminal Misc. Writ Petition has been filed by the petitioners with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 10.04.2015 passed by Additional Sessions Judge, Deoband, Saharanpur in Criminal Revision No. 13 of 2015 as well as the order dated 24.11.2014 passed by the Additional Chief Judicial Magistrate, Deoband, Saharanpur in case No. 158 of 2014.

Counter and rejoinder affidavits have been exchanged between the parties.

It appears that on 19.02.2013 an F.I.R. was lodged at police station concerned by the petitioner No. 1 at Crime No. 106/13 under Sections 147, 148, 149, 302, 307, 506 IPC against Thath Singh, Amar Singh @ Ghhoghhu, Kunwar Pal, Shiv Kumar and Vijay @ Vija with the allegation that they have committed the murder of Rajeev the nephew of the informant Tej Singh (petitioner). Police submitted the charge-sheet and trial proceeded in the matter. Perusal of record also goes to show that respondent No. 2 Pooran Singh @ Punna moved an application under Section 156(3) Cr.P.C. before the court concerned implicating the petitioners for committing the murder of Rajeev Singh for whose death, F.I.R. had already been lodged at Crime No. 106/13 mentioned above. Police after investigation submitted final report. Protest petition was filed. The concerned Magistrate treated the protest petition as complaint rejecting the final report and after collecting the evidence on the complaint, summoned the petitioners to face the trial for the offences under Section 147, 148, 149, 302, 307, 506 IPC.

Heard learned counsel for the petitioner, learned A.G.A. for the State as well as learned counsel for the complainant.

Submission of the learned counsel for the petitioners is that in the F.I.R. lodged by Tej Singh petitioner No. 1 regarding the murder of the Rajeev, a charge sheet was submitted against the Kunwar Pal and others. An F.I.R. for the same offence was also lodged by the respondent No. 2 as Crime No. 106-A/13 against the petitioners in which police after investigation submitted final report. Protest petition was filed on the final report which was treated by the concerned Magistrate as complaint. The concerned Magistrate after recording the evidence summoned the petitioner to face the trial without considering this fact that second F.I.R. is barred under the law for the same offence. It was further argued that all the witnesses were not examined by the complainant as the matter was exclusively triable by the Sessions Court.

Learned counsel for the petitioners placed reliance on the following case laws.

I. Amitbhai Anilchandra Shah vs. Central Bureau of Investigation , Laws (SC)-2013-4-24.

II. T.T. Antony Vs. State of Kerala , Laws (SC)-2001-7-19.

III. Vinay Tyagi Vs. Irshad Ali @ Deepak and others , (2013) 5 Supreme Court Cases 762.

IV. Babubhai Vs. State of Gujarat , Laws (SC)-2010-8-61.

V. Upkar Singh Vs. Ved Prakash and others , 2004 Cri. L.J. 4219.

Learned A.G.A. as well as learned counsel for the respondent No. 2 argued that second F.I.R. was filed with different version therefore, it was not barred under the law. Petitioners have committed murder of Rajeev and have wrongly informed to the police implicating the respondent No. 2 and another. Summoning order was passed on the basis of evidence collected on the complaint and the same is not barred by provision of law. At the most both the trial may be tried by the same court to avoid the conflict of opinion.

Learned counsel for the complainant has also placed reliance on the following decisions.

I. Rajinder and others Vs. State of Haryana and another , 2004 Cri. L.J. 4224.

II. Prathap and another Vs. State of Kerala , 2010 (71) ACC 346.

III. Shiv Shankar Singh Vs. State of Bihar and another , 2012 (76) ACC 285.

IV Surender Kaushik and others Vs. State of U.P. and others , 2013 (4) CCSC 1888 (SC).

V R. Kuppusami Vs. State Rep. By Inspector of Police, Ambeiligai 2013 (4) CCSC 1896 (SC).

I have considered the rival submissions and gone through the entire record.

Hon''ble Supreme Court in case of Amitbhai Anilchandra Shah (supra) in para No. 32, 33, 34 has held as under:

In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati''s encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior counsel for the petitioner, in Ramlal Narang (supra), the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case.

Upkar Singh (supra) also carves out a second exception to the rule prohibiting lodging of second FIR for the same offence or different offences committed in the course of the transaction disclosed in the first FIR. The only exception to the law declared in T.T. Anthony (supra), which is carved out in Upkar Singh (supra) is to the effect that when the second FIR consists of alleged offences which are in the nature of the cross case/cross complaint or a counter complaint, such cross complaint would not be permitted as second FIR. In the case on hand, it is not the case of the CBI that the FIR in Tulsiram Prajapati''s case is a cross FIR or a counter complaint to the FIR filed in Sohrabuddin and Kausarbi''s case being FIR dated 01.02.2010.

The ratio laid down in Kari Choudhary''s case (supra) is heavily relied on by learned ASG appearing for the CBI. In that decision, it was held that when there are two 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 While there is no quarrel as to the above proposition, after carefully considering the factual position, we are of the view that the said decision is not helpful to the case on hand. Maintainability of writ petition under Article 32:

Regarding the maintainability, namely, filing a writ petition under Article 32 of the Constitution of India, learned ASG submitted that it is only on complete examination and appreciation of facts, materials and evidence that it can be decided as to whether these distinct conspiracies form part of the same transaction in view of the law laid down by this Court. He further pointed out that the CBI which is the investigating agency, after a full fledged investigation, came to a conclusion that the conspiracy to eliminate Tulsiram Prajapati was a distinct and separate offence, accordingly, such disputed questions of fact are not and ought not to be decided in a writ petition under Article 32. He also pointed out that apart from the fact that there are sufficient remedies to raise such a plea under the Code before a court of competent jurisdiction, such disputed questions of fact can only be adjudicated after carefully examining and appreciating the evidence led in. It is also pointed out that there is no question of any prejudice suffered on account of prayer of the petitioner since if the offences are distinct and separate which is so emerging from the present case, there can neither be joint trial nor could the charge sheet filed in the present case be treated as supplementary charge sheet. As a concluding argument, Mr. Rawal, learned ASG submitted that this Court in exercise of its jurisdiction under Article 32 may not like to adjudicate such disputed questions of fact which require evidence to be led and its appreciation.

As against this, Mr. Mahesh Jethmalani, learned senior counsel for the petitioner submitted that the CBI is not faced with any prejudice which is to be caused to it, if the relief as prayed for by the petitioner is granted. Admittedly, the petitioner is not praying for quashing of the charge sheet dated 04.09.2012. During the course of argument, when this Court specifically put a question to learned ASG appearing for the CBI as to what prejudice would be caused to the CBI if instead of treating the charge sheet dated 04.09.2012 to be fresh and independent charge sheet, the same will be treated as a supplementary charge sheet in the first charge sheet, there was no definite answer as to what prejudice would be caused to the CBI. For the sake of repetition, it is relevant to mention that in our order dated 08.04.2011 in Narmada Bai (supra), while disposing of the said writ petition, this Court directed the CBI to take up the investigation as prayed accepting their contention that killing of Tulsiram Prajapati is a part of the same series of acts in which Sohrabuddin and Kausarbi were killed and, therefore, Tulsiram Prajapati encounter should also be investigated by the CBI. Accepting the above assertion of the CBI, this Court directed to complete the investigation within six months.

In Upkar Singh (supra) in para 15, 16 and 17 the Apex Court has held as under:

Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony vs. State of Kerala & Ors. has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T.T. Antony vs. State of Kerala & Ors. in paragraph 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) Cr.P.C. this is what the Court observed:--

"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 offences 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."

Emphasis supplied.

It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T.T. Antony vs. State of Kerala & 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 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 1st complaint or on his behalf alleging a different version of the said incident.

This Court in Karl Choudhary vs. Mst. Sita Devi & Ors. , 2002 (1) SCC 714 discussing this aspect of law held:--

"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 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 offence alleged have been committed and, if so, who have committed it".

(Emphasis Supplied)

The simple questions for consideration before the court in the instant matter are as follows:--

I. Whether it is mandatory for the complainant to examine all the witnesses in sessions triable cases on the complaint?

II. Whether a second F.I.R. in the same offence in the nature of a counter case or counter version is permissible or not?

To answer the first question I would refer to the law laid down by Hon''ble Supreme Court in Shivjee Singh Vs. Nagendra Tiwary & others , 2010 (7) SCC 578.

The Supreme Court has held that it is the choice of the complainant to whom he/she examined. All the witnesses including formal witness are not required to examine under the proviso of Section 202(2) Cr.P.C. In the present matter complainant had examined the necessary witnesses and on this basis the summoning order was passed. Thus, on this count, the order under challenge cannot be said to be bad in the eye of law. The contention of the learned counsel for the petitioner on this issue is not acceptable.

So far as the lodging of the second F.I.R. or the complaint for the same offence is concerned, first F.I.R. was lodged by one Tej Singh for the murder of Rajeev Singh in which charge-sheet was filed. Second F.I.R. was lodged on the basis of order passed by the concerned Magistrate on the application under Section 156(3) Cr.P.C. with the different version. In the first F.I.R. Allegation was that Kunwar Pal and others have committed murder of the Rajeev. In the second F.I.R. lodged for the murder of same person Rajeev Singh, it was alleged that petitioners themselves have committed the murder of their nephew who was of unsound mind. Necessarily, complaint version was different to the version taken in the earlier F.I.R. Hon''ble Supreme Court discussing the earlier decisions in T.T. Antony (supra) and Upkar Singh (supra) cases has clearly held that registration of complaint in the nature of counter case is not barred. Prohibition was made only to lodge an F.I.R. against the same accused for the same offence. Same is the position when there are rival versions in respect of same episode which would normally take the shape of different F.I.R. and the investigation can be carried on under both of them. Thus looking to the situation, the ratio laid down in above mentioned cases about the lodging of the second F.I.R. for the same offence in counter version as also comparing it with the facts of the present matter this court is of the view that summoning order passed in the present matter is not illegal and is not prohibited under the law. The second F.I.R. was not barred under the law because version taken in the second F.I.R. was different version/counter version. The nature and scope of the provision under Section 210 Cr.P.C. need not to be considered at this stage as no question was raised by the parties on this issue. It is also pertinent to mention here that if the present matter/case comes under the purview of Section 210 Cr.P.C., parties may take appropriate step at appropriate time.

In view of the above, I do not find any ground to set aside the summoning order passed against the petitioners and there is no any illegality or infirmity in the orders passed by the concerned Magistrate as well as the order passed by the revisional Court. No ground is made out to issue any writ, order or direction as prayed.

Thus, the petition lacks merit and is hereby dismissed.

However, it is directed that since the complaint case instituted against the petitioners relates to the murder the same person Rajeev, therefore, it would be desirable to the court concerned to commit the complaint case to the court of sessions for trial taking recourse of the provision of Section 323 Cr.P.C. and thereafter the Sessions Judge shall transfer the case to the same court to avoid the conflict of opinion where the trial is going on regarding Crime No. 106/13 on the basis of police charge-sheet in respect of murder of same person i.e. Rajeev. Thus this court ordered, accordingly.