criminal laws – what is prohibited whether filing of two firs by one part against same accused or filing case and counter case against each other ? = if two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not. = 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

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 408 OF 2018

(Arising out of S.L.P.(Crl.)No.7970 of 2014)

P. Sreekumar ….Appellant(s)

VERSUS

State of Kerala & Ors. ….Respondent(s)

 

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is directed against the final

judgment and order dated 27.05.2014 passed by

the High Court of Kerala at Ernakulum in Criminal

M.C. No.2641 of 2007 whereby the High Court

allowed the petition filed by the accused-respondent

No.3 herein and quashed the FIR(Annexure II),

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charge-sheet(Annexure III) and all consequent

proceedings arising therefrom pending as C.C.

No.2682 of 2002 on the file of the JFCM-II,

Ernakulum.

3) Facts involved in the case lie in a narrow

compass so also the issue involved in the appeal is

a short one. The facts are mentioned hereinbelow:

4) There is one public charitable Trust by name –

Vidyodaya Trust (hereinafter referred to as “the

Trust”) having its office at S.N. Junction,

Palarivattom in the State of Kerala. The Trust is

engaged in the educational activities and runs

educational institutions in the State of Kerala.

5) The appellant herein is one of the Chief

Executive Trustees of the Trust whereas respondent

No.2 herein is one of the Trustees and respondent

No.3 was a Treasurer of the Trust at the relevant

time.

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6) On 17.10.2001, respondent No.2 (Trustee) filed

a private complaint against the appellant,

respondent No.3 (Treasurer) and three Bank

officials of the Bank in the Court of Chief Judicial

Magistrate, Ernakulum (CC No.15877 of 2001)

under Section 200 of the Code of Criminal

Procedure, 1973 (Annexure-P-14).

7) In the complaint, it was inter alia alleged that

the appellant, respondent No.3 and three bank

officials conspired together to defraud the Trust and

to give effect to their conspiracy managed to siphon

off around Rs.42 lacs of the Trust from its Bank

accounts by manipulation and forging the accounts

books and several documents of the Trust.

8) Pursuant to the aforesaid complaint, an FIR in

Crime Case No.817 of 2001 for the offences

punishable under Sections 408, 409, 420, 467, 468,

473, 477 read with Section 34 of the Indian Penal

Code, 1908 (hereinafter referred to as “IPC”) was

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registered wherein the appellant, respondent No.3

and three bank officials were named as accused

persons in relation to commission of the alleged

crime.

9) The aforesaid incident also led to filing of the

FIR No.5 of 2002 by the appellant (Chief Executive

Trustee) against respondent No.3 (Treasurer of the

Trust) in North Police Station, Ernakulum under

Sections 406, 409, 465, 467 and 471 of IPC. It was

inter alia alleged therein that respondent No.3 was

the person, who indulged into the fraud and forgery

and he managed to take away the money belonging

to the Trust by misusing his post. Pursuant to this

FIR, respondent No.3 (Treasurer of the Trust) was

arrested and later enlarged on bail.

10) Thereafter, the police made investigation in

relation to FIR No.5 of 2002 and submitted

charge-sheet No.166 of 2002 (Annexure- P-17).

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11) So far as Crime Case No.817 of 2001 arising

out of Complaint Case No.15877 of 2001 is

concerned, it was registered against the appellant,

respondent No.3 and three Bank officials for

commission of the offences punishable under

Section 408, 409, 420, 467, 468, 473, 477 read with

Section 34 of IPC. The police made investigation in

this case and filed their final report on 06.02.2003

stating therein that no case was made out against

appellant and three bank officials (described in the

report as Accused Nos.2, 3, 4 and 5). These four

accused were, therefore, discharged from Crime

Case No.817 of 2001. (Annexure-P-18).

12) Respondent No. 2, i.e., the Trustee, however,

felt aggrieved by the final report dated 06.02.2003,

filed a protest petition (CC No. 28 of 2004) before

the Chief Judicial Magistrate, Ernakulum and

prayed therein for taking cognizance of the offences

mentioned in the final report. The Chief Judicial

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Magistrate issued summons to the appellant and

respondent No.3 to appear before the Court on

22.07.2004.

13) Respondent No.3 filed a Criminal M.C.

No.2641 of 2007 before the High Court of Kerala

seeking to quash the final report filed in Crime Case

No.5 of 2002 pending in the Court of JMFC II at the

instance of the appellant against him.

14) In his application, respondent No.3, in

substance, contended that he cannot be made to

face two trials on the same set of facts and for the

same offences in two different Courts. He,

therefore, prayed that so far as Crime Case

No.5/2002 filed by the appellant against him and

the charge-sheet filed therein are concerned, the

same are liable to be quashed.

15) In the meantime, two Criminal Misc.

Applications under Section 482 of the Code were

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filed in the High Court of Kerala being Criminal

M.C. No. 1732 of 2004 and Criminal M.C No. 2641

of 2007.

16) So far as Criminal M.C. No.1732 of 2004 is

concerned, it was filed by the appellant herein

wherein he sought quashing of the proceedings

pending against him in the Court of Judicial First

Class Magistrate Court II, Ernakulum (Crime Case

No.5 of 2002) in relation to Complaint Case No.2682

of 2002.

17) So far as Criminal M.C. No.2641 of 2007 is

concerned, it was filed by respondent No.3 against

the appellant challenging the FIR/charge-sheet filed

against him by the appellant (C.C. No.2682 of 2002)

in the Court of JMFC-II, Ernakulum.

18) By impugned order, the Single Judge of the

High Court dismissed the Criminal M.C.

No.1732/2004, which was filed by the appellant,

and declined to quash the proceedings challenged

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therein. It was observed by the Single Judge, “it is

not possible to quash the complaint at this stage”.

19) So far as the Criminal M.C. No.2641/2007 is

concerned, the Single Judge, by the same impugned

order, allowed the said Criminal M.C. and quashed

the FIR and the charge-sheet filed pursuant thereto.

20) The appellant, felt aggrieved by the dismissal

of his petition (Criminal M.C. No.1732/2004) by the

High Court, filed two SLPs being SLP(Crl.)

No.6319/2014 and the present SLP in this Court

against the order by which the High Court had

quashed the FIR/charge-sheet filed against

respondent No.3 and had allowed Criminal M.C.

Application 2641 of 2007.

21) This Court, on 06.03.2018, dismissed the

appellant’s SLP No.6319/2014 as having become

infructuous because during its pendency, the

appellant and other three bank officials were

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discharged by the competent Court from the case.

The appellant, therefore, did not pursue the SLP.

22) With these background facts, the question for

consideration in this appeal is as to whether the

High Court (Single Judge) was justified in allowing

the Criminal M.C. No.2641/2007 filed by

respondent No.3 and thereby was justified in

quashing the FIR/charge-sheet filed against

respondent No.3 and all consequential proceedings

arising out of the FIR/charge-sheet pending as C.C.

No.2682 of 2002 on the file of JMFC-II, Ernakulum.

23) Heard Mr. Jayant Bhushan, learned senior

counsel for the appellant, Ms. Liz Mathew, learned

counsel for respondent No.1 and respondent No.2,

who appeared in person.

24) Having heard the learned counsel for the

appellant and respondent No.2, who appeared in

person, we are inclined to allow the appeal and set

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aside the impugned order passed in Cri. M.C.No.

2641 of 2007.

25) The question, which fell for consideration

before the High Court, was that if two FIRs are filed

in relation to the same offence and against the same

accused, whether the subsequent FIR was liable to

be quashed or not.

26) The Single Judge placed reliance on three

decisions of this Court reported in State of

Haryana & Ors. vs. Bhajanlal, (1992) Supp(1) SCC

335, Madhu Limaye vs. State of Maharashtra,

1977 (4) SCC 551 and R.P. Kapur vs. State of

Punjab, AIR 1960 SC 866 and quashed the second

FIR/charge-sheet under Section 482 of the Code.

27) In our view, the High Court had committed

jurisdictional error in quashing the subsequent

FIR/charge-sheet, which was filed at the instance of

the appellant against respondent No.3 without

adverting to the law on the subject.

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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.

29) 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:

“23. Be that as it may, if the law laid down by

this Court in T.T. Antony case1 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.

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24. We have already noticed that in T.T.

Antony case1 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.

25. 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.”

30) 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:

“24. From the aforesaid decisions, it is quite

luminous that the lodgment of two FIRs is

not permissible in respect of one and the

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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

by 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.”

31) 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

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respondent No.3 was legally maintainable and could

be entertained for being tried on its merits.

32) 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.

33) 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

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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.

34) In the light of the foregoing discussion and the

four reasons mentioned above, we are unable to

agree with the reasoning and the conclusion of the

High Court and are, therefore, inclined to set aside

the impugned order.

35) The Magistrate will now proceed to try and

decide the case on merits and while doing so, he will

be free to examine all the issues arising in the case

from all the angles in the light of the evidence that

will be adduced by the parties.

36) If the Magistrate finds that the material

brought on record against any person(s) including

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the appellant herein in the evidence indicating the

involvement of any such person(s) in commission of

the alleged offences, he will be free to proceed

against any such person(s) in accordance with law

and bring the proceedings to its logical end

uninfluenced by any of our observations.

37) Let the trial before the concerned Magistrate

be over, as directed above, within a year as an outer

limit.

38) With these observations and directions, the

appeal succeeds and is accordingly allowed.

Impugned order passed in Criminal M.C No.

2641/2007 is set aside. As a result, C.C. No.2682 of

2002 on the file of the JMFC-II, Ernakulum is

restored to its file for being tried on merits in

accordance with law.

……………………………………..J.

[R.K. AGRAWAL]

 

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……………………………………….J.

[ABHAY MANOHAR SAPRE]

New Delhi;

March 19, 2018

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