Manoj Kumar @ Chunnu v. The State Of Bihar & Ors.

Before lodging of the present case an FIR was lodged vide Ara Town P.S. Case No.361 of 2009 for the offences under Sections 396, 324, 376 and 511 of the Indian Penal Code by Kamlesh Kumar alias Raju who happens to Patna High Court Cr.Misc. No.34769 of 2011 (7) dt.24-04-2013 2 be the husband of late Nilam Srivastava. In the FIR it has been alleged that on the fateful day he along with his wife aforesaid had gone to see statue in town at different places during Dashhara festival. While he was returning some unknown criminals intercepted them, they tried to snatch ornaments on resistance they killed his wife. After some time another FIR was lodged as aforesaid Vide Ara Town P.S. Case No.370 of 2009 by Bimla Prasad Lal father of the deceased where allegation was made against the husband and other family members connived killed his daughter and depicted wrong and false story with a view to divert the investigation. The police investigated the case and found the story mentioned in Ara Town P.S. Case No. 361 of 2009 to be a false and concocted story, submitted the final form whereas in connection with Ara Town P.S. Case No.370 of 2009 the story allegation of the father of the deceased was found to be correct and accordingly charge-sheet has been submitted under Sections 302, 120B/34 of the Indian Penal Code and 27 of the Arms Act. Learned counsel for the petitioner submits that the police has wrongly instituted the second FIR for the Patna High Court Cr.Misc. No.34769 of 2011 (7) dt.24-04-2013 3 same incident which led to institution of Ara Town P.S. Case No.370 of 2009. At best the police could have treated the statement of father as statement under section 161 of the Code of Criminal Procedure. He further submits that the whole action of the police is divorced to the provision of law and wrongly instituted a fresh case instead investigated the same and wrongly instituted fresh FIR, filed the charge- sheet in the subsequent case. He has further submitted that as the whole action of the police is completely illegal and as such the order impugned in pursuance thereof is illegal and the same is not sustainable in the eye of law. In support of his contention relied on the judgment of the Hon’ble Supreme Court in the case of Babubhai Vs. State of Gujrat and others, reported in 2010 (12) SCC 254. Learned counsel for opposite party no.2 has submitted though there was some irregularities committed by the police in instituting the fresh case instead thereof the police ought to have investigated the case and could have filed the charge-sheet against the petitioner and other co-accused in that case alone and there was no need to institute fresh case. But that will not make any change in situation as the police on fact has found sufficient material Patna High Court Cr.Misc. No.34769 of 2011 (7) dt.24-04-2013 4 against the petitioner and other accused persons submitted charge-sheet mere irregularity, it cannot be a ground for allowing the petitioner and co-accused to go scout free without facing any criminal case. The Hon’ble Supreme Court in the aforesaid judgment in a similar situation was considering permissibility of lodging of the fresh FIR in connection with same incident and held that if the facts mentioned in the two F.I.R. two difference case, two FIR is permission but the factum relating to the incident is the same cannot be a ground for instituting a fresh F.I.R. and the Court has held that instead of lodging the fresh case the police was required treat statement made before police and complete the investigation and took suitable action in the matter. The Court has also held that in exceptional circumstances the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo where the cases are exceptional in nature. It will be relevant to quote paragraph 20 of the aforesaid judgment: “Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important document. It is the first information of a cognizable offence Patna High Court Cr.Misc. No.34769 of 2011 (7) dt.24-04-2013 5 recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 CrPC.” As this Court finds that investigating relating to the case has been done in right direction and does not want to give fresh direction but at the same time both the cased relating to the same incident cannot be lodged of two different FIR and different action by the police. Accordingly both the cases be amalgamated and the charge-sheet which has been filed in connection with Ara Town P.S. Case No.370 of 2009 be treated as charge-sheet of Ara Town P.S. Case No.361 of 2009 and the court below will treat the earlier case revived and the court will proceed the trial taking into account the statement made in second F.I.R. to be the statement under section 162 of the Code of Patna High Court Cr.Misc. No.34769 of 2011 (7) dt.24-04-2013 6 Criminal Procedure and materials collected in Ara Town P.S. Case No.370 of 2009 be treated as the material Ara Town P.S. Case No.361 of 2009 and proceed with the matter in accordance with law. As has been stated by learned counsel for opposite party no.2 charges have been framed and one witness has already been examined this Court does not interfere with the trial of the case. The court below is directed to complete the trial within a period of one year from the date of receipt/production of a copy of this order. With the aforesaid observation and direction this application is disposed off. Vinay/- (Shivaji Pandey, J)