HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Hon’ble Suresh Kumar Gupta, J.
CRIMINAL APPEAL No. 1768 of 2018; 26.07.2021
Anita Devi Pal
State of U.P. Thru. Secretary Deptt. of Home Anr.
Counsel for Appellant :- Sudhir Kumar Singh,Santosh Kumar; Counsel for Respondent :- Govt. Advocate,Umesh Singh
1. Vide order dated 04.09.2019, this Court passed the following orders:-
“Vakalatnama filed by Sri Umesh Singh, Advocate, on behalf of opposite party no. 2, is taken on record.
Heard learned counsel for the appellant, learned counsel for opposite party as well as learned A.G.A. appearing for the State, pertaining to the prayer of bail of the appellant.
This criminal appeal has been filed by the appellant under Section 14A (1) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to quash the summoning order 10.07.2018 and charge sheet dated 28.03.2018, in S.T. No. 270/2018, pending before the Court of Special Judge, SC/ST Act, Lucknow on the basis of F.I.R. lodged by the opposite party no. 2 at Police Station Charbagh, District Lucknow, which is registered as Case Crime No. 614/2017, under Section 147/323/504 I.P.C. and 3(1)(Da (Dha) and 2(V)(Ka) of SC/ST Act.
It is submitted by learned counsel for the appellant that opposite party no. 2 initially had lodged the F.I.R. registered as case crime No. 0162/2017, Police Station Mahila Thana, District Lucknow, under Sections 147, 323 and 504 I.P.C. in which charge sheet has been filed and the petitioner has been enlarged on bail. Thereafter opposite party no. 2 maliciously lodged the second F.I.R. for the same incident which was registered as case crime No. 0614/2017, Police Station G.R.P. Charbagh, under Section 147/323/504 I.P.C., and Section 3(1)(Da and Dha) and 2(V)(Ka) of SC/ST Act.
It is contended on behalf of the appellant that from the perusal of both the first information reports, the second F.I.R. has been lodged by the complainant only to harass the appellant and false accusation under S.C. and S.T. Act has been levelled. It is next contended that the petitioner is already facing trial in the Court of Special C.J.M., (A.P), Lucknow for the same incident, therefore, the second F.I.R. for the same incident she cannot be compelled to face the second trial and in this regard the petitioner counsel has relied on the judgment of Hon’ble Supreme Court reported in “(2001)(6) SCC 181 T.T. Antony Vs. State of Kerala and others”, wherein the Hon’ble Court has held that the second F.I.R. for the same incident is not permissible and consequently the investigation made pursuant thereto has no legal consequences and was pleased to quashed the second F.I.R.
In view of the above, the proceedings of Case Crime No. 614/2017, under Section 147/323/504 I.P.C. and 3(1)(Da (Dha) and 2(V)(Ka) of SC/ST Act, Police Station G.R.P. Charbagh, District Lucknow pending before the Court of Special Judge, SC/ST Act, Lucknow, shall remain stayed till the next date of listing.
Learned counsel for opposite party no. 2 prays for and is granted four weeks time to file counter affidavit.
Rejoinder, if any, may be filed within two week’s thereafter.
List on 24.10.2019.”
2. After 04.09.2019, the case was fixed on 2.7.2019, on that date, the case was ordered to be listed for today i.e. 26.07.2021.
3. Case called out. Only learned counsel for appellant as well as learned A.G.A. is present for the State. No one has put in appearance on behalf of the opposite party no. 2.
4. Heard learned counsel for appellant, learned A.G.A. for the State and perused the material available on record.
5. This appeal has been preferred under Section 14 (A) (1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against impugned summoning order dated10.7.2018 passed by learned Special Judge, (SC/ST Act), Lucknow in S.T. No. 270 of 2018 arising out of Case Crime No. 614 of 2018, under Sections 147, 323, 504 IPC and Section 3 (1) (DA Dha) and Section 3 (2) (V) (Ka) of SC/ST Act as well as charge sheet dated 28.03.2018 submitted by the police in the aforesaid case crime number.
6. The main contention of learned counsel for the petitioner is that earlier an FIR was lodged against the appellant and six other persons in Mahila Thana on 08.11.2017 as Case Crime No. 162 of 2017, under Sections 147, 323 and 504 IPC. After investigation, charge sheet was filed against the appellant on 19.01.2018 under Section 173 (2) Cr.P.C. and all other named co-accused persons exonerated. In pursuance of this charge sheet, cognizance order was passed against the appellant on 17.03.2019.
7. Since the offence was bailable and the appellant has obtained bail on 02.05.2018, on the basis of same allegation, same substance and same set of fact another FIR was lodged by the first informant on 29.11.2017 against the appellant and other accused persons under Sections 147, 323, 504 IPC and Section 3 (1) (x) of the SC/ST Act. After lodging the FIR on 29.11.2017, charge sheet was filed against the appellant and other co-accused persons on 28.03.2018 under Sections 147, 323, 504 IPC and Section 3 (1) (Da Dha) and 3 (2) (v) (Ka) of the SC/ST Act. In pursuance of the charge sheet dated 28.03.2018, the learned Special Judge (SC/ST Act), took cognizance on 10.7.2018 and passed summoning order against the appellant and other accused-persons.
8. Being aggrieved with the summoning order dated 10.07.2018, the instant criminal appeal has been preferred with the prayer that since the appellant is already facing trial in the court of learned Special Chief Judicial Magistrate, C.B.I. (A.P.), Lucknow for the same offence, then the appellant cannot be forced to face trial for same offence, for which the summoning order dated 10.7.2018 has been passed by learned Special Judge (SC/ST Act), Lucknow.
9. In support of his submission, learned counsel for appellant has drawn the attention of this Court towards the authority of Hon’ble Supreme Court in the case of T.T. Antony Vs. State of Kerala and others reported in (2001) (6) SCC 181 wherein in paragraph no. 35 ot has been held as under:-
“35. For the aforementioned reasons, the registration of the second FIR under Section 154 CrPC on the basis of the letter of the Director General of Police as Crime No. 268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crimes Nos. 353 and 354 of 1994 for making further investigations and filing a further report or reports under Section 173(8) CrPC before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268 of 1997 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside.”
10. Learned counsel for appellant has further drawn the attention of this Court towards the authority in the case of Surender Kaushik and others vs State of Uttar Pradesh and others reported in (2013) 5 SCC 148 wherein in paragraph no. 25, it has been held as under:-
“25. In the case at hand, the appellants lodged FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including Appellant 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the governing body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinised, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter-complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the court concerned. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance.
11. The fact of this case is squarely covered by the above-cited precedent of Hon’ble the Apex Court.
12. Therefore, the opinion of this Court is that any further complaint by the same complainant against the same person on same set of fact subsequent to the registration of the case is invalid. Subsequent to the lodging of FIR on the same set of fact against same accused amounts to double jeopardy and it is also hit by Article 20 (2) of the Constitution of India, which states as under:
“No person shall be prosecuted and punished for the same offence more than once.”
13. In the present case, the first FIR was lodged by the complainant on 8.11.2017 against the present appellant and other co-accused persons under Section 147, 323, and 504 IPC, in Police Station Mahila Thana, Lucknow and subsequent FIR was lodged by the complainant on 29.11.2017 on G.R.P. Charbagh against appellant as Case Crime No. 614 of 2017, under Sections 147, 323 504 IPC and Section 3 (1) (Da Dha) and 3 (2) (v) of the SC/ST Act by making improvement in FIR. It is alleged that accused uses caste abusive word “Pasi and Chamar” intimidating her with filthy language.
14. Since the second FIR is relating to the same date, time and place of occurrence, so the second FIR is not permissible under law as propounded by Hon’ble Supreme Court referred above. Consequently, summoning order dated 10.7.2018 passed in subsequent FIR and charge sheet dated 28.3.20018 submitted by the police in Sessions Trial No. 270 of 2018, arising out of Case Crime No. 614 of 2018 under Sections 147, 323 504 IPC and Section 3 (1) (Da) (Dha) 3 (2) (v) (ka) of the SC/ST Act pending in the court of learned Special Judge (SC/ST Act), Lucknow is liable to be quashed but earlier case bearing Case Crime No. 162 of 2017, under Sections 147, 323 and 504 IPC, Police Station Mahila Thana, Lucknow pending before Special C.J.M. (A.P.) Lucknow shall continue. If any grievance to the first informant, then she may approach through Investigating Officer under Section 173 (8) Cr.P.C.
15. In view of the above discussions, this appeal is hereby allowed.
16. Learned Special Judge (SC/ST Act), Lucknow is hereby directed to pass fresh order in accordance with law.