Giridih (Jharkhand) v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2489 of 2024 Nandlal Saw, aged about 29 years, son of Kunjlal Saw, resident of Village-Dama, Aura, P.O. & P.S.-Bagodar, Dist.-Giridih (Jharkhand) .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State : Mr. Kumar Harsh, Advocate : Mr. Suraj Kishore Prasad, Advocate : Mr. Shailesh Kr. Sinha, Addl. P.P. ….. By the Court:- 1. 2.
Legal Reasoning
Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with a prayer to quash the entire criminal proceeding including the FIR in connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024 registered for the offences punishable under Sections 341, 323, 307, 376, 504, 506 and 34 of Indian Penal Code on the ground that the same is the second FIR in respect of the same occurrence with improvisation of the allegations made. 3. The brief fact of the case is that the informant-complainant of Hazaribagh Mufasil P.S. Case No. 76 of 2024 lodged a written report with the Hazaribagh Mufasil police station alleging that on 10.02.2024 at about 12:43 AM, the petitioner armed with gun and a Cr.M.P. No.2489 of 2024 1 packet went to open the door of the informant on which the informant made a phone call to her neighbour. On hearing the sound of the phone call, the petitioner climbed over the tank and fled away from the boundary but while going away told that, on that day the informant escaped and unless the informant obeys the petitioner, the petitioner will destroy the door, windows and will also shoot the informant and nobody can do any harm to the petitioner. The informant came out from her house after opening the door. The neighbours came and they intimated to the police over phone. The police saw the packet which contained three detonators attached with wires and three pieces gelatin and one piece of paper was also there in which it was written that the the petitioner is threatening to kill the informant and her family members. The informant handed over all the materials to police. The informant also alleged that animosity between the petitioner and informant was regarding running of national high school in partnership with the father of the informant and the petitioner and since then the petitioner is threatening the informant. 4. On the basis of the said written report, police registered Hazaribagh Mufasil P.S. Case No. 44 of 2024. Thereafter, the informant filed Complaint Case No. 807 of 2024 in the court of Chief Judicial Magistrate, Hazaribagh on 15.03.2024 and the same upon being referred to police under Section 156 (3) Cr.P.C., the FIR of Hazaribagh Mufasil P.S. Case No. 76 of 2024 has been registered. 5. In the present FIR the informant has made detailed description of the occurrences and also added the occurrences which took place on 07.09.2022, 27,11.2023, 03.01.2024 as well as the occurrence of Cr.M.P. No.2489 of 2024 2 10.02.2024 in paragraph-9 of the complaint. The complaint, upon being referred to police under Section 156 (3) Cr.P.C., the FIR of the case has been registered. In the said complaint, it has also been mentioned that the complainant filed Hazaribagh Mufasil P.S. Case No. 44 of 2024. The additional allegation made is that on 12.02.2024 at 08:00 AM, the petitioner attempted to forcibly enter the house of the informant and told that they will forcibly took the younger son of the informant namely Prithvi. In paragraph no.11 the allegation has been made that on 13.02.2024 at about 04:00 pm the petitioner along with co-accused person entered into house of the informant and threatened the informant to take back the case instituted by the informant in the mufassil police station. She reported the matter again to police by registered post on 19.02.2024 and thereafter filed the complaint and after the complaint being forwarded to police, Hazaribagh Mufasil P.S. Case No. 76 of 2024 has been registered. 6.
Legal Reasoning
Learned counsel for the petitioner relied upon the judgment of this Court in the case of Manish Varma & Anr. vs. The State of Jharkhand & Anr. in Cr.M.P. No. 1735 of 2023 dated 06.05.2023 and submits that this Court in that case relied upon the judgment of Hon’ble Supreme Court of India in the case of Krishna Lal Chawla & others v. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435 paragraph-10 of which reads as under:- “10. Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case. As this Court has held in Amitbhai Anilchandra Cr.M.P. No.2489 of 2024 3 Shah [Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309] , such an absurd and mischievous interpretation of the provisions of the CrPC will not stand the test of constitutional scrutiny, and therefore cannot be adopted by us.” (Emphasis supplied) and submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings; which is not the mandate of the law. 7. It is next submitted by the learned counsel for the petitioner that in that case, this Court also relied upon the of Upkar Singh v. Ved Prakash and Others reported in (2004) 13 SCC 292 paragraph-17 of which reads as under:- “17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] 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 that 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 to an the same accused will amount 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 first complaint or on his behalf alleging a different version of the said incident.” (Emphasis supplied) wherein this Court reiterated the settled principle of law that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited Cr.M.P. No.2489 of 2024 4 under the Code of Criminal Procedure because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. 8. Learned counsel for the petitioner next submits that in that judgment this Court also relied upon the judgment of the Hon’ble Supreme Court of India in the case of Prem Chand Singh vs. State of Uttar Pradesh & Another reported in (2020) 3 SCC 54 paragraph-11 of which reads as under:- “11. It is, therefore, apparent that the subject-matter of both the FIRs is the same general power of attorney dated 2-5-1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds.” (Emphasis supplied) and submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the substratum of the two F.I.Rs are common, the mere addition of Section 467, 468 and 471 in the subsequent F.I.R cannot be considered as different ingredients to justify the later F.I.R as being based on different materials, allegations and grounds. 9. It is also submitted by the learned counsel for the petitioner that the FIR of Hazaribagh Mufasil P.S. Case No. 76 of 2024 is an improvisation of the earlier FIR because so far as the offences alleged prior to 10.02.2024 has already occurred before registration of the first FIR being Hazaribagh Mufasil P.S. Case No. 44 of 2024 and the only allegation that on two subsequent occasions, once the petitioner Cr.M.P. No.2489 of 2024 5 attempted to enter into the house and threaten and on another occasion the petitioner entered into the house of the informant and threatened; is only ornamental allegations which can be taken care of in the investigation of FIR vide Hazaribagh Mufasil P.S. Case No. 44 of 2024, the investigation of which case is going on and charge sheet has not yet been submitted and in Hazaribagh Mufasil P.S. Case No. 76 of 2024 also investigation is going on and charge sheet has not yet been submitted. It is then submitted by the learned counsel for the petitioner that the admitted case of the informant is that the dispute between the parties is related to the FIR of the business of running the school and hence, repeated FIRs has been lodged for the purpose of wreaking vengeance. Hence, it is submitted that this FIR being the second FIR in respect of the selfsame occurrence with a little modification and exaggeration and some additional allegation to give a cloak of a different FIR, the continuation of the criminal proceeding in connection with FIR being Hazaribagh Mufasil P.S. Case No. 76 of 2024 will amount to abuse of process of law. Therefore, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 10. Learned Additional Public Prosecutor on the other hand opposes the prayer as made by the petitioner in this criminal miscellaneous petition and submits that the offences are separate and distinct and because of the subsequent occurrence which took place on 12.02.2024 and 13.02.2024 the second FIR is also maintainable. It is next submitted by learned Addl. P.P. that the second FIR is based on different version and new discoveries. Hence, it is submitted that Cr.M.P. No.2489 of 2024 6 this criminal miscellaneous petition being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of T.T. Antony v. State of Kerala & Others reported in (2001) 6 SCC 181 paragraph-27 of which reads as under:- “27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. 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 offence 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 CrPC or under Articles 226/227 of the Constitution.” (Emphasis supplied) that sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police Cr.M.P. No.2489 of 2024 7 in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report. 12. The Hon’ble Supreme Court of India in the case of C. Muniappan & Others v. State of Tamil Nadu reported in (2010) 9 SCC 567 has referred to the consequent test to find out the second FIR is for the selfsame occurrence and which has been relied upon by the Hon’ble Supreme Court of India in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Another reported in (2013) 6 SCC 348. 13. Now coming to the facts of the case, the undisputed fact remains that both the FIRs has been instituted alleging the occurrence of 10.02.2024 at about 12:00 mid night. In the second FIR, there is some exaggeration and improvisation of alleged occurrences of 07.09.2022, 27.11.2023 and 03.01.2024 which were also known to the informant at the time of lodging FIR of Hazaribagh Mufasil P.S. Case No. 44 of 2024 so the same can by no stretch of imagination can be said to be new discovery made on factual foundation nor the same is different version, the same only be termed as exaggeration and improvisation. 14. So far subsequent occurrence of 12.02.2024 and 13.02.2024 of threatening the informant is concerned, they are basically allegedly committed in the course of the same transaction, the facts when put to continuation test as has been explained in the case of C. Muniappan & Others v. State of Tamil Nadu (supra), this Court arrives at the conclusion that the allegations made in the FIR of Cr.M.P. No.2489 of 2024 8 Hazaribagh Mufasil P.S. Case No. 76 of 2024 are the offences committed in continuation of the allegation made in Hazaribagh Mufasil P.S. Case No. 44 of 2024 and allegedly committed in the course of the same transaction. 15. Thus, in the considered opinion of this Court, the FIR of Hazaribagh Mufasil P.S. Case No. 76 of 2024 is the second FIR in respect of which the FIR of Hazaribagh Mufasil P.S. Case No. 44 of 2024 has been registered. Therefore the same is hit by Section 162 of Code of Criminal Procedure. Hence, the continuation of the FIR and the entire criminal proceeding in connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024 will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the FIR in connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024 be quashed and set aside qua the petitioner only. 16. Accordingly, the entire criminal proceeding including the FIR in connection with Hazaribagh Mufasil P.S. Case No. 76 of 2024 is quashed and set aside qua the petitioner only. 17.
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 11th September, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2489 of 2024 9