10 September 2004
Supreme Court
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UPKAR SINGH Vs VED PRAKASH .

Case number: Crl.A. No.-000411-000411 / 2002
Diary number: 9212 / 2001
Advocates: JITENDRA MOHAN SHARMA Vs J. P. DHANDA


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CASE NO.: Appeal (crl.)  411 of 2002

PETITIONER: Upkar Singh                                                        

RESPONDENT: Ved Prakash & Ors.                                         

DATE OF JUDGMENT: 10/09/2004

BENCH: N. Santosh Hegde, S.B. Sinha & A.K. Mathur  

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       This  Court while granting leave in this appeal doubted the correctness  of the judgment of this Court in the case of T.T. Antony    vs.  State of  Kerala and Ors. 2001 (6) SCC 181, hence  referred this case to Hon’ble  Chief Justice of India for being heard by a larger Bench, in these  circumstances  this appeal is now before us for final disposal  and to  consider   the correctness of law laid down in the case of T.T. Antony    vs.   State of Kerala and Ors. (supra).

The facts of the case necessary for the disposal of this appeal are as  follow :-

In regard to an incident which took place on 20th of May, 1995 at  about 10.00  AM, a complaint  was lodged  by the 1st respondent  herein   with the Sikhera Police Station in the village Fahimpur Kalan.  In the said  complaint appellant  herein and some others persons were arrayed as  accused. On the basis  of the said complaint  the police  registered a Crime  under Sections 452 and 307 IPC against the appellant  and other named  persons  therein in Crime No. 48 of 1995 of that Police Station.

       Appellant alleges that he too lodged a complaint in regard to the very  same offence  against the respondents  herein  for having committed   offences punishable  under Sections  506 and 307 IPC as against him and his  family members but since the said complaint was not entertained by the  police concerned, he tried to approach  the Superintendent of Police  and  District Magistrate and having failed in his  attempts to get his complaint  registered  he filed petition under Section 156 (3) of the Criminal Procedure  Code  before the Judicial Magistrate,  Muzaffarnagar.

       The learned Magistrate having found prima facie  case as per his order  dated 11th July, 1995  directed the police, Sekhera Police Station to register a  Crime against the accused persons  named in the said complaint of the  appellant and to investigate  the same and submit  a report within 2 months.

       In view of the directions issued by the Magistrate  the concerned  police registered a Crime No. 48-A of 1995 under Sections 147, 148,149 and  307 IPC.

       Being aggrieved  by the said order of the Magistrate directing the  registration of a complaint the 1st  respondent  herein preferred a Criminal  Revision Petition  before the IIIrd Additional Sessions Judge,  Muzaffarnagar.  The learned Sessions Judge  after considering  the  arguments allowed the Revision Petition and the order of the Magistrate,  

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directing registration of a criminal case against  the respondents  herein at  the instance of the appellant,  was set aside.  

       Being aggrieved  by the order of the learned Sessions Judge the  appellant herein filed a criminal miscellaneous petition  before the High  Court of Judicature  at Allahabad, the High Court by the impugned order   dated 10th of April, 2001  following an earlier  judgment of the same court in  the case of Ram Mohan Garg  vs.  State of U.P.    1990  (27) A.C.C.  438   dismissed the Revision Petition.  From the impugned judgment, it is seen in  the said judgment of the Ram Mohan Garg  vs.  State of U.P.  a Division  Bench of that Court had  held :-          "So far as the registration  of a cross case on the basis  of the First Information  report is concerned, that does  not appear to be permissible after the investigation in  respect  of a crime has commenced  in views of the  provisions of Section 162 Cr. P.C.  However, it was  always possible  that during investigation of a crime  the version set up in the first Information report  may  be found to be false version and some other person  really responsible to the crime may be chargesheeted   after a fair investigation.  Hence, it was not necessary  that a fresh first information report should have been  registered on the basis of Annexure-3 which is a letter  dated 22-6-89 to the Director General of Police in  view of the provision of Section 162 Cr. P.C.  However, it is always permissible in law for an  aggrieved person  to file a  complaint  before the  competent Magistrate which can be investigated.   Simultaneously according to the provisions of the  Criminal Procedure Code."

       The High Court understood the ratio of the judgment  of the Division  Bench  in Ram Mohan Garg’s  case  as laying down a principle in law that  in regard to one single incident , there could not be a case and a counter  case, as could be seen from the following observations  of the High Court   found in the impugned judgment now before us :-

"Of course two F.I.Rs are not permissible  in  respect to one  and same incident  because   the subsequent  F.I.R. is hit by Section 162  Cr. P.C".  

       By the time this appeal came to be considered for grant of leave  by  this Court on 21st of March, 2002, this Court had delivered the judgment in  T.T. Antony’s case wherein this Court framed the following question among  others for consideration ;- (i)     Whether  registration of a fresh case, Crime No.  268 of 1997 which is  in the nature of second FIR  under Section 154 Cr. P.C. was valid and could  form the basis of a fresh investigation?"

       Answering the above question this Court held :-

"In such a case he need not enter every one  of them  in the  station  house diary and this is implied in Section 154 Cr.PC.   Apart from a vague  information by a phone call or a cryptic   telegram, the information first entered in the station house  diary, kept for this purpose, by a police officer in charge of a  police station is the first information report \026FIR postulated  by Section  154 Cr.PC.  All other informations made orally

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or in writing after the commencement of the  investigation   into the cognizable offence disclosed from the facts  mentioned in the first information report  and entered in the   station house diary by the police officer or such other  cognizable  offences  as may come  to his notice during the  investigation, will be statements falling under Section 162  Cr.PC. No such information/statement can properly be  treated as an FIR and entered in the station house diary  again, as it would in effect be a second FIR and the same  cannot be in conformity with the scheme of Cr PC".  

This observation of the High Court in said case of T.T. Antony is  understood  by the learned counsel for the respondents as the Code  prohibiting the filing  of a second complaint  arising from the same incident.  It is on that basis and relying on the  said judgment  in T.T. Antony’s  case  an argument is addressed  before us that once a FIR registered  on the  complaint  of one  party a second FIR in the nature of counter case is not  registrable and no investigation  based on the said second complaint could  be  carried out.

Having perused the judgment in T.T. Antony’s  case,  we really do  not think  this Court  in  that case  has laid down any such proposition of  law.

To understand  the ratio  of the judgment in T.T. Antony’s case,  it is  necessary for us to note the facts of  that case  in brief :

In the said case 2 incidents occurred on the very same day consequent   to a decision taken by a Minister to inaugurate  the function of  an evening  branch of a co-operative bank  which was opposed by members of a political  group  and in that process the 1st incident  took place in the proximity  of  the   town hall  at a place called Kutupuramba  in Kerala and  the second incident   took place in the vicinity  of a Police Station at the same place.  During the  said 2 incidents,   on the orders of Executive Magistrate  and Deputy  Superintendent of Police, the police open fired  as a result of which 5  persons died  and 6 persons  were injured  amongst the demonstrators.  In  regard  to the incident which took place near the town hall  the police  registered   a Crime No. 353 of 1994  under Sections 143, 147, 148 332, 353  324 and 307 read with Section 149  IPC along with some other offence  while in regard to the incident which took place near the Police Station a  crime was registered  under Crime No. 354 of 1994 under Sections 143, 147  148,  307 and 427 read with  Section 149 IPC and other offences named  therein. Both the offences were registered on the date of incident itself.  

During the pendency  of the said cases the political Government of the  State changed and the new Government appointed a Commission of  Inquiry  and on the report of the Commission, an investigation was directed to be  conducted by the Deputy Inspector General of Police concerned who after  urgent personal investigation  registered Crime No. 268 of 1997 under  Section 302 IPC  against  the Minister who was present at the time of  the  incident,   the Deputy Superintendent of Police, the Executive Magistrate  who ordered  the firing and certain police  constables.    

The registration  of the said crime came to be challenged before the  High Court by way of a writ petition  and learned Single Judge of the High  Court directed the case to be re-investigated  by CBI.  But in a writ appeal  the Division Bench of the High Court   quashed the FIR  in Crime No. 268  of 1997 as against  the Additional Superintendent of Police  but it directed a  fresh investigation by the State police headed by one of the three Senior  Officers named in the judgment  in stead of fresh investigation  by CBI  as  directed by the learned Single Judge.  It is the  above directions  of the  Division Bench that came to be challenged by way of different appeals  before  this Hon’ble Court  in the case of T.T. Antony   (supra) and  connected cases.  In this factual background this   Hon’ble Court, as stated

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above, came to the conclusion  that a subsequent  FIR  on the same set of  facts is not in conformity  with the scheme of the Code for the reasons stated  therein.   

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.PC,  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.  PC 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 Kari 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

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whether the offence alleged have been committed and,  if so, who have committed it".                                                    ( Emphasis Supplied )

       In State of Bihar  vs. J.A.C. Saldanna 1980 AIR SC 326, this Court  considering Section 3 of the Police Act and Section 173 (8) of the Code     held :-

"The power of the Magistrate  under Section 156  (3) to direct further investigation is clearly an  independent power   and does not stand  in conflict   with the power of the State Government  as spelt  out hereinbefore.  The power conferred upon  the  Magistrate  under Section 156 (3)  can be  exercised  by the Magistrate even after submission  of a report by the investigating officer  which  would  mean that it would be open to the  Magistrate not to accept the conclusion of the   investigating officer and direct further  investigation.  This provision does  not in any way   affect the power of the investigating  officer to  further investigate the case even after submission  of the report  as provided  in section 173 (8).   Therefore, the High Court was in error in holding  that the State Government in exercise  of the   power of superintendence under Section 3 of the  Act lacked the power to direct further investigation  into the case.  In reaching this conclusion  we have  kept out of consideration the provision contained  in Section 156 (2) that an investigation by an  officer-in-charge  of a police station, which  expression includes police officer superior in rank  to such officer, cannot be questioned  on the  ground that such investigating officer had no  jurisdiction  to carry on the investigation;  otherwise that provision would have been a short  answer to the contention raised on behalf  of  respondent 1.                  This  clearly shows  that if concerned police  refused to register  a  counter complaint, it is open to the Magistrate at any stage to direct  the  police to register the complaint brought to his notice and an investigate the  same.

       This Court in the case of  Ram Lal Narang   vs.  State (Delhi  Administration) 1979 (2) SCC 322  held :-

"Even in regard to  a complaint  arising out  of  a complaint on further investigation  if it was  found  that there was a large conspiracy than   the one referred to in the previous complaint  then a further investigation  under the court  culminating  in another complaint is  permissible".

       A perusal  of the judgment  of this Court in Ram Lal Narang’s  case  (supra) not only 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 1st 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

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course, this larger proposition of law laid down in Ram Lal Narang’s  case  is not necessary to be relied  on by us in the present case.  Suffice it to say   that the discussion in Ram Lal Narang’s  case is in the same line as found in  the judgments in Kari Choudhary   and  State of Bihar  vs. J.A.C. Saldanna  (supra).  However, it must be noticed that in T.T. Antony’s case Ram Lal  Narang’s case was noticed  but the Court did not express any opinion either  way.  

Be that as it may, if the law laid down  by this Court in  T.T. Antony’s  case  is to be accepted as holding  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 herein below 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 books.  This cannot be the purport  of the Code.  

We have already noticed that in the T.T. Antony’s case this Court did  not  consider the legal right  of an aggrieved  person  to file  counter claim,   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 20th May, 1995, the appellant and the 1st respondent  herein have  lodged  separate  complaints giving different versions  but while the complaint of  respondent   was registered  by the concerned police, 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.

For the reasons state above, this appeal succeeds and the impugned  orders  of the High Court  and the learned Additional Sessions Judge are set  aside  and that of the Magistrate restored.