By Y.SRINIVASA RAO, PRL. ASST. SESSIONS JUDGE, TIRUPATI, ANDHRA PRADESH .
Introduction:—
The Hon’ble Apex Court referring to the principle laid down by it in earlier judgments including the judgment in Upkar Singh v. Vedprakash [(2004) 13 SCC 292] and also the facts of the said case held that the second FIR is maintainable since though it is related to the same incident for which the first FIR was registered and the allegations in the second FIR are in the nature of counter-complaint and, therefore, it was . (2018) 4 SCC 579 . (2020) 5 SCC 378 . AIR 2021 SC 1381 KL,J Crl.P. No.3446 of 2021 maintainable. The Hon’ble Apex Court laid down certain principles with regard to the maintainability of second FIR which are as follows:
(i) 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;
(ii) a counter-complaint by different complainant; and
(iii) 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.
In Samta Naidu, the Hon’ble Apex Court while dealing with the facts of the case therein with regard to the dispute between the sons of late G.S. Naidu in relation to sale of a Maruti-800 Vehicle by forging signature of their father held that the allegations in both the complaints are one and the same and, therefore, the second complaint/FIR is not maintainable. The Hon’ble Apex Court considered the principle of sameness therein.
In Krishna Lal Chawla an altercation took place between the parties therein on 5.08.2012, two crimes were registered, and the Hon’ble Apex Court in exercise of inherent powers under Article – 142 of the Constitution of India to do complete justice, held that the second FIR is on the very same set of allegations between the very same parties and, therefore, the same is not maintainable and in KL,J Crl.P. No.3446 of 2021 exercise of power under Article – 142 of the Constitution of India, quashed the proceedings in both the crimes.
Registration of multiple FIRs:—
Considering several judgments, in Jakka Vinod Kumar Reddy and another Vs. State of Telangana and another, Criminal Petition No. 3446 of 2021, judgment dated 14th June, 2021 , the Hon’ble High Court of Telangana, as to registration of multiple FIRs, held as follows:
“The sum and substance of the above said judgments is that there is no embargo for registration of two FIRs on the following circumstances/grounds:
(a) where the allegations made in both the FIRs are from different spectrum, where there are different versions from different persons;
(b) same set of facts may constitute different offences;
(c) where there are two distinct offences having different ingredients;
(d) where the allegations are different and distinct;
(e) when there are rival versions in respect of same episode, they would normally take shape of two different FIRs and investigation can be carried out under both of them by the same Investigating Agency.
21. The Court which is examining permissibility of registration of second FIR has to consider whether there is substance of allegation and overlapping feature made in both the complaints. The Court has to further consider the truth of sameness and that whether the allegations are different and distinct. If the allegations in both the complaints are same between same persons, then registration of second FIR is not maintainable.
22. In view of the above authoritative principle laid down by the Hon’ble Apex Court referred to above, coming to the case on hand, as discussed above, the allegations made in both the complaints are different and distinct. At the cost of repetition, it is trite to note that the allegations/disputes in the first FIR are with regard to property disputes and the allegations/disputes in the second FIR are with regard to matrimonial disputes. Therefore, there is no sameness in the allegations made by respondent No.2 in both the complaints. Thus, the contention of the petitioners that registration of second FIR is illegal is unsustainable. There are several triable issues and the factual aspects which are to be considered by the trial Court during the trial. The petitioners have to face trial and prove their innocence.
23. The Hon’ble Apex Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra, AIR 2019 SC 847, has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that, prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
24. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh, AIR 2021 SC 931, the Hon’ble Apex Court referring to the earlier judgments rendered by it has categorically held that the High Courts in exercise of its inherent powers under Section – 482 of Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
25. Therefore, in view of the law laid down by the Hon’ble Apex Court, since there are several triable issues, this Court is not inclined to quash the proceedings in C.C. No.5893 of 2021.
26. The learned counsel for the petitioners would submit that the police without following the procedure laid down under Section – 41A of Cr.P.C., without following the guidelines issued by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 263, and without conducting fair and transparent investigation, laid the charge sheet against the petitioners herein showing them as absconding. The police have also issued LOC against accused No.1, so that they will be arrested on their return to India from Bangkok.
27. A perusal of the charge sheet in Crime No.488 of 2020 would reveal that there is no specific mention with regard to the efforts made by the Investigating Officer to serve the notices under Section – 41A of Cr.P.C. on the petitioners herein. Admittedly, the petitioners herein are in Bangkok, even then, the Investigating Officer filed the charge sheet showing them as absconding.
28. Considering the said fact and also the fact that the police have already filed charge sheet which was taken on file vide C.C. No.5893 of 2021 and a request was made by the Investigating Officer to issue Non-Bailable Warrant against the petitioners, this Criminal Petition is disposed of granting liberty to the petitioners herein to appear before the XIII Additional Chief Metropolitan Magistrate, Hyderabad, file an application to recall NBWs, if any, issued against them within one month from today and, thereafter they shall appear before the said Court on the next date of hearing without contending that they are not having knowledge of date of hearing. However, the Police Officials of RGI Police Station, Immigration Authorities or any other Authority shall not arrest the petitioners either under the guise of issuance of LOC, pendency of same or under the guise of NBW, if any, pending against them in C.C. No.5893 of 2021.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.”