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Tuesday, March 20, 2018

criminal laws – what is prohibited whether filing of two firs by one part against same accused or filing case and counter case against each other ? = if two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not. = the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 408 OF 2018
(Arising out of S.L.P.(Crl.)No.7970 of 2014)
P. Sreekumar ….Appellant(s)
VERSUS
State of Kerala & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is directed against the final
judgment and order dated 27.05.2014 passed by
the High Court of Kerala at Ernakulum in Criminal
M.C. No.2641 of 2007 whereby the High Court
allowed the petition filed by the accused-respondent
No.3 herein and quashed the FIR(Annexure II),
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charge-sheet(Annexure III) and all consequent
proceedings arising therefrom pending as C.C.
No.2682 of 2002 on the file of the JFCM-II,
Ernakulum.
3) Facts involved in the case lie in a narrow
compass so also the issue involved in the appeal is
a short one. The facts are mentioned hereinbelow:
4) There is one public charitable Trust by name –
Vidyodaya Trust (hereinafter referred to as “the
Trust”) having its office at S.N. Junction,
Palarivattom in the State of Kerala. The Trust is
engaged in the educational activities and runs
educational institutions in the State of Kerala.
5) The appellant herein is one of the Chief
Executive Trustees of the Trust whereas respondent
No.2 herein is one of the Trustees and respondent
No.3 was a Treasurer of the Trust at the relevant
time.
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6) On 17.10.2001, respondent No.2 (Trustee) filed
a private complaint against the appellant,
respondent No.3 (Treasurer) and three Bank
officials of the Bank in the Court of Chief Judicial
Magistrate, Ernakulum (CC No.15877 of 2001)
under Section 200 of the Code of Criminal
Procedure, 1973 (Annexure-P-14).
7) In the complaint, it was inter alia alleged that
the appellant, respondent No.3 and three bank
officials conspired together to defraud the Trust and
to give effect to their conspiracy managed to siphon
off around Rs.42 lacs of the Trust from its Bank
accounts by manipulation and forging the accounts
books and several documents of the Trust.
8) Pursuant to the aforesaid complaint, an FIR in
Crime Case No.817 of 2001 for the offences
punishable under Sections 408, 409, 420, 467, 468,
473, 477 read with Section 34 of the Indian Penal
Code, 1908 (hereinafter referred to as “IPC”) was
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registered wherein the appellant, respondent No.3
and three bank officials were named as accused
persons in relation to commission of the alleged
crime.
9) The aforesaid incident also led to filing of the
FIR No.5 of 2002 by the appellant (Chief Executive
Trustee) against respondent No.3 (Treasurer of the
Trust) in North Police Station, Ernakulum under
Sections 406, 409, 465, 467 and 471 of IPC. It was
inter alia alleged therein that respondent No.3 was
the person, who indulged into the fraud and forgery
and he managed to take away the money belonging
to the Trust by misusing his post. Pursuant to this
FIR, respondent No.3 (Treasurer of the Trust) was
arrested and later enlarged on bail.
10) Thereafter, the police made investigation in
relation to FIR No.5 of 2002 and submitted
charge-sheet No.166 of 2002 (Annexure- P-17).
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11) So far as Crime Case No.817 of 2001 arising
out of Complaint Case No.15877 of 2001 is
concerned, it was registered against the appellant,
respondent No.3 and three Bank officials for
commission of the offences punishable under
Section 408, 409, 420, 467, 468, 473, 477 read with
Section 34 of IPC. The police made investigation in
this case and filed their final report on 06.02.2003
stating therein that no case was made out against
appellant and three bank officials (described in the
report as Accused Nos.2, 3, 4 and 5). These four
accused were, therefore, discharged from Crime
Case No.817 of 2001. (Annexure-P-18).
12) Respondent No. 2, i.e., the Trustee, however,
felt aggrieved by the final report dated 06.02.2003,
filed a protest petition (CC No. 28 of 2004) before
the Chief Judicial Magistrate, Ernakulum and
prayed therein for taking cognizance of the offences
mentioned in the final report. The Chief Judicial
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Magistrate issued summons to the appellant and
respondent No.3 to appear before the Court on
22.07.2004.
13) Respondent No.3 filed a Criminal M.C.
No.2641 of 2007 before the High Court of Kerala
seeking to quash the final report filed in Crime Case
No.5 of 2002 pending in the Court of JMFC II at the
instance of the appellant against him.
14) In his application, respondent No.3, in
substance, contended that he cannot be made to
face two trials on the same set of facts and for the
same offences in two different Courts. He,
therefore, prayed that so far as Crime Case
No.5/2002 filed by the appellant against him and
the charge-sheet filed therein are concerned, the
same are liable to be quashed.
15) In the meantime, two Criminal Misc.
Applications under Section 482 of the Code were
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filed in the High Court of Kerala being Criminal
M.C. No. 1732 of 2004 and Criminal M.C No. 2641
of 2007.
16) So far as Criminal M.C. No.1732 of 2004 is
concerned, it was filed by the appellant herein
wherein he sought quashing of the proceedings
pending against him in the Court of Judicial First
Class Magistrate Court II, Ernakulum (Crime Case
No.5 of 2002) in relation to Complaint Case No.2682
of 2002.
17) So far as Criminal M.C. No.2641 of 2007 is
concerned, it was filed by respondent No.3 against
the appellant challenging the FIR/charge-sheet filed
against him by the appellant (C.C. No.2682 of 2002)
in the Court of JMFC-II, Ernakulum.
18) By impugned order, the Single Judge of the
High Court dismissed the Criminal M.C.
No.1732/2004, which was filed by the appellant,
and declined to quash the proceedings challenged
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therein. It was observed by the Single Judge, “it is
not possible to quash the complaint at this stage”.
19) So far as the Criminal M.C. No.2641/2007 is
concerned, the Single Judge, by the same impugned
order, allowed the said Criminal M.C. and quashed
the FIR and the charge-sheet filed pursuant thereto.
20) The appellant, felt aggrieved by the dismissal
of his petition (Criminal M.C. No.1732/2004) by the
High Court, filed two SLPs being SLP(Crl.)
No.6319/2014 and the present SLP in this Court
against the order by which the High Court had
quashed the FIR/charge-sheet filed against
respondent No.3 and had allowed Criminal M.C.
Application 2641 of 2007.
21) This Court, on 06.03.2018, dismissed the
appellant’s SLP No.6319/2014 as having become
infructuous because during its pendency, the
appellant and other three bank officials were
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discharged by the competent Court from the case.
The appellant, therefore, did not pursue the SLP.
22) With these background facts, the question for
consideration in this appeal is as to whether the
High Court (Single Judge) was justified in allowing
the Criminal M.C. No.2641/2007 filed by
respondent No.3 and thereby was justified in
quashing the FIR/charge-sheet filed against
respondent No.3 and all consequential proceedings
arising out of the FIR/charge-sheet pending as C.C.
No.2682 of 2002 on the file of JMFC-II, Ernakulum.
23) Heard Mr. Jayant Bhushan, learned senior
counsel for the appellant, Ms. Liz Mathew, learned
counsel for respondent No.1 and respondent No.2,
who appeared in person.
24) Having heard the learned counsel for the
appellant and respondent No.2, who appeared in
person, we are inclined to allow the appeal and set
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aside the impugned order passed in Cri. M.C.No.
2641 of 2007.
25) The question, which fell for consideration
before the High Court, was that if two FIRs are filed
in relation to the same offence and against the same
accused, whether the subsequent FIR was liable to
be quashed or not.
26) The Single Judge placed reliance on three
decisions of this Court reported in State of
Haryana & Ors. vs. Bhajanlal, (1992) Supp(1) SCC
335, Madhu Limaye vs. State of Maharashtra,
1977 (4) SCC 551 and R.P. Kapur vs. State of
Punjab, AIR 1960 SC 866 and quashed the second
FIR/charge-sheet under Section 482 of the Code.
27) In our view, the High Court had committed
jurisdictional error in quashing the subsequent
FIR/charge-sheet, which was filed at the instance of
the appellant against respondent No.3 without
adverting to the law on the subject.
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28) In our opinion, the law on the subject which
governs the controversy involved in the appeal is no
more res integra and settled by the decision of this
Court (three-Judge Bench) in the case reported in
Upkar Singh vs. Ved Prakash & Ors., (2004) 13
SCC 292 and also by the subsequent decisions.
29) Their Lordships after examining all the
previous case laws on the subject laid down the
following proposition of law in the following words
speaking through Justice N. Santosh Hegde:
“23. Be that as it may, if the law laid down by
this Court in T.T. Antony case1 is to be
accepted as holding that a second complaint
in regard to the same incident filed as a
counter-complaint is prohibited under the
Code then, in our opinion, such conclusion
would lead to serious consequences. This will
be clear from the hypothetical example given
hereinbelow i.e. if in regard to a crime
committed by the real accused he takes the
first opportunity to lodge a false complaint
and the same is registered by the
jurisdictional police then the aggrieved
victim of such crime will be precluded from
lodging a complaint giving his version of the
incident in question, consequently he will be
deprived of his legitimated right to bring the
real accused to book. This cannot be the
purport of the Code.
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24. We have already noticed that in T.T.
Antony case1 this Court did not consider the
legal right of an aggrieved person to file
counterclaim, on the contrary from the
observations found in the said judgment it
clearly indicates that filing a
counter-complaint is permissible.
25. In the instant case, it is seen in regard to
the incident which took place on 20-5-1995,
the appellant and the first respondent herein
have lodged separate complaints giving
different versions but while the complaint of
the respondent was registered by the police
concerned, the complaint of the appellant
was not so registered, hence on his prayer
the learned Magistrate was justified in
directing the police concerned to register a
case and investigate the same and report
back. In our opinion, both the learned
Additional Sessions Judge and the High Court
erred in coming to the conclusion that the
same is hit by Section 161 or 162 of the Code
which, in our considered opinion, has
absolutely no bearing on the question
involved. Section 161 or 162 of the Code
does not refer to registration of a case, it
only speaks of a statement to be recorded by
the police in the course of the investigation
and its evidentiary value.”
30) The aforesaid principle was reiterated by this
Court (Two Judge Bench) in Surender Kaushik &
Ors. vs. State of U.P. & Ors., (2013) 5 SCC 148 in
the following words:
“24. From the aforesaid decisions, it is quite
luminous that the lodgment of two FIRs is
not permissible in respect of one and the
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same incident. The concept of sameness has
been given a restricted meaning. It does not
encompass filing of a counter-FIR relating to
the same or connected cognizable offence.
What is prohibited is any further complaint
by the same complainant and others against
the same accused subsequent to the
registration of the case under the Code, for
an investigation in that regard would have
already commenced and allowing registration
of further complaint would amount to an
improvement of the facts mentioned in the
original complaint. As is further made clear
by the three-Judge Bench in Upkar Singh, the
prohibition does not cover the allegations
made by the accused in the first FIR alleging
a different version of the same incident.
Thus, rival versions in respect of the same
incident do take different shapes and in that
event, lodgment of two FIRs is permissible.”
31) Keeping the aforesaid principle of law in mind
when we examine the facts of the case at hand, we
find that the second FIR filed by the appellant
against respondent No.3 though related to the same
incident for which the first FIR was filed by
respondent No.2 against the appellant, respondent
No.3 and three Bank officials, yet the second FIR
being in the nature of a counter-complaint against
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respondent No.3 was legally maintainable and could
be entertained for being tried on its merits.
32) In other words, there is no prohibition in law
to file the second FIR and once it is filed, such FIR
is capable of being taken note of and tried on merits
in accordance with law.
33) It is for the reasons that firstly, 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; Second, it was filed by the appellant
as a counter-complaint against respondent No.3;
Third, 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; and Lastly, the
High Court while quashing the second
FIR/charge-sheet did not examine the issue arising
in the case in the light of law laid down by this
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Court in two aforementioned decisions of this Court
in the cases of Upkar Singh (supra) and Surender
Kaushik (supra) and simply referred three decisions
of this Court mentioned above wherein this Court
has laid down general principle of law relating to
exercise of inherent powers under Section 482 of
the Code.
34) In the light of the foregoing discussion and the
four reasons mentioned above, we are unable to
agree with the reasoning and the conclusion of the
High Court and are, therefore, inclined to set aside
the impugned order.
35) The Magistrate will now proceed to try and
decide the case on merits and while doing so, he will
be free to examine all the issues arising in the case
from all the angles in the light of the evidence that
will be adduced by the parties.
36) If the Magistrate finds that the material
brought on record against any person(s) including
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the appellant herein in the evidence indicating the
involvement of any such person(s) in commission of
the alleged offences, he will be free to proceed
against any such person(s) in accordance with law
and bring the proceedings to its logical end
uninfluenced by any of our observations.
37) Let the trial before the concerned Magistrate
be over, as directed above, within a year as an outer
limit.
38) With these observations and directions, the
appeal succeeds and is accordingly allowed.
Impugned order passed in Criminal M.C No.
2641/2007 is set aside. As a result, C.C. No.2682 of
2002 on the file of the JMFC-II, Ernakulum is
restored to its file for being tried on merits in
accordance with law.
……………………………………..J.
[R.K. AGRAWAL]

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……………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 19, 2018
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