Criminal Procedure - Second FIR being in the nature of a counter-complaint was legally maintainable and could be entertained for being tried on its merits.
Held:- 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. 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 SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[R.K. AGRAWAL] AND [ABHAY MANOHAR SAPRE] JJ.
March 19, 2018
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), 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.
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 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).
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 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 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 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 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 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.
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.
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 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 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 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 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.
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