High Court
Case Details
Neutral Citation No. - 2024:AHC:181859 Court No. - 86 Case :- CRIMINAL REVISION No. - 3920 of 2024 Revisionist :- Priyanka Rastogi Opposite Party :- State Of U.P. & Others Counsel for Revisionist :- Jai Prakash Prasad Counsel for Opposite Party :- G.A.,Meraj Ahmad Khan Hon'ble Ram Manohar Narayan Mishra,J. The instant criminal revision has been filed against the impugned order dated 4.3.2023 passed by CJM, Moradabad in Application No. 2265 of 2022 whereby application under section 156(3) Cr.P.C. filed by the revisionist has been dismissed. Heard learned counsel for the revisionist, learned counsel for respondent nos. 2 to 7 and learned AGA for the State. Factual matrix of the case in brief are that the applicant had filed an application under section 156(3) Cr.P.C. before the court of CJM, Moradabad on 11.10.2022 with allegation that on 4.10.2022 at around 9:30 PM, the opposite party accompanying two unknown persons barged into the house of complainant in absence of her husband and become violent towards complainant and her parents-in-law. The opposite party Unnati Rastogi had grabbed mother-in-law of the complainant and Sunaina assaulted her by sharp edged weapon with intention to kill her resulting in head injury on person of her mother-in-law. The opposite parties Hridesh and Akash pushed father-in-law Anand Prakash Rastogi and made him fall on earth. They also threatened her father-in-law with life and assaulted him by Tabbal also, which was carried by Sunaina. The complainant informed her husband on telephone about the incident and medical examination of parents-in-law of complainant was done. In the meanwhile at around 11:45 PM when the complainant was present in the house and her husband was in the hospital to take care of her parents, the opposite parties, Tanu Rastogi and Akhil Rastogi forcefully trespassed the house and they dashed her on bed, they attempted to commit rape on her.
Legal Reasoning
Learned CJM dismissed the application mainly on the ground that in respect of incident dated 4.10.2022 at 9:30 pm, an FIR has already been lodged at the instance of Dr. Sunaina, who is opposite party no. 2 in the present revision against Gaurav Rastogi, in which, she has made allegation regarding outraging modesty and commit sexual offence against her minor daughter aged around 15 years and also engaging in marpeet with the informant and her daughter. The said FIR has been lodged under sections 356, 452, 354A, 323, 504, 506 IPC and 7/8 of POCSO Act. The court below has also observed that accused Gaurav has filed anticipatory bail application in the said offences and the complainant has given elaborate statement under section 161 Cr.P.C. in said case therefore, two FIRs cannot be lodged in respect of the same offence. Learned trial court placed reliance on the judgement of Hon'ble Supreme Court in T.T. Antony vs. State of Kerala, 2001 (1) SCC 181. Learned counsel for the revisionist submitted that learned trial court has misdirected itself while dismissing application under section 156(3) Cr.P.C. as a counter case in respect of different version of the incident is not prohibited under the law. He also submitted that the impugned order passed by the trial court is not sustainable under the law. The trial court has failed to appreciate the injury report of injured Rajni Devi and Anand Prakash, parents-in-law of the applicant/ revisionist. He next submitted that in the injury report of Anand Prakash, one incised wound size 2.5x0.3cm mid up region as skin deep and two contusions were found on other parts of the body. In injury report of Rajni Devi also, one lacerated wound has been found on her skull. Therefore, injuries of the injured persons are substantial and not superficial. Learned trial court has only reiterated the version of the applicant made in the application under section 156(3) Cr.P.C. but has not given any consideration towards it in the impugned order and dismissed the application on legal grounds which are not tenable. Per contra, learned counsel for respondent no. 2 submitted that the impugned order is perfectly and lawful and this is settled law that two FIRs in respect of same offence cannot be lodged. He placed reliance on the judgement of Division Bench of this Court passed in Crl. Misc. Writ Petition No. 1492 of 2023 (Sachin Datta vs. State of U.P. and another) in which this Court held that it is settled that subsequent FIRs for different offences committed in the course of same transaction or offences arising as a consequence of prior offence is not permissible but the second complaint in regard to the same incident filed as a counter complaint as also the second FIR for the same nature of offence against same accused persons lodged by different person or containing the different allegation is permissible. I have gone through the judgement of Division Bench of this Court cited by learned counsel for private respondents in which judgement of T.T. Antony vs. State of Kerala (supra) referred and reliance has been placed on it by the trial court while dismissing the application filed by the revisionist and subsequent judgements in which Hon'ble Apex Court in Upkar Singh vs. Ved Prakash and others (2004) 13 SCC 292 had referred and discussed but distinguished it. In Upkar Singh (supra) Hon'ble Supreme Court held that the second complaint in regard to the same incident filed as a counter complaint is not prohibited under the Cr.P.C. It has been held that in T.T. Antony's case, legal rights of aggrieved persons to file counter complaint has not been considered. The present case is squarely covered by the judgement of Hon'ble Apex Court in Upkar Singh (supra) as the applicant had given a counter version of the incident dated 4.10.2022 at around 9:30 pm, in this respect, FIR has been lodged at the instance of respondent no. 2 against brother-in-law (dever) of present revisionist under various sections of IPC and POCSO Act and some allegations regarding wrongful confinement, commission of house trespass and attempt to rape has been made against the respondent nos. 6 and 7 with regard to subsequent incident, which allegedly took place in the same night are also made but entire allegations in the application under section 156(3) Cr.P.C. has to be considered by the trial court after considering the allegations made in the application under section 156(3) Cr.P.C. which has been dismissed by the impugned order. After giving thoughtful consideration of the impugned order in the light of judgement cited above, I am of the considered opinion that the impugned order is contrary to law and cannot be sustained which is liable to be set aside mainly on the ground that trial court has given a wrong reasoning that present application under section 156(3) Cr.P.C. and earlier FIR lodged at the instance of respondent no. 2 are in respect of same offence and incident. Both parties have given their own version which allegedly occurred on 4.10.2022 in the night at 9:30 pm and present case appears to be counter version of earlier version of FIR which was already registered. The revision is allowed. The impugned order passed by the trial court is set aside. The matter is remitted back to the trial court to consider the application under section 156(3) Cr.P.C in the light of observation made herein-above and pass a speaking order thereon after giving opportunity of hearing to the revisionist. It is clarified that this Court has not given any opinion on the merit of the application under section 156(3) Cr.P.C. Order Date :- 21.11.2024 Dhirendra/