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2011 (8) Supreme 450
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and T.S. Thakur, JJ.
Shiv Shankar Singh — Appellant
versus
State of Bihar & Anr. — Respondents
Criminal Appeal No. 2160 of 2011
(Arising out of SLP(Crl.) No. 2768 of 2010)
Decided on : 22-11-2011
Second Complaint-Maintainability of - Law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order had been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour-However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit (Para 13)
Second Protest Petition-Maintainability of-The Protest Petition can always be treated as complaint and proceeded with in terms of Chapter XV of Cr.P.C.- Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances- In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, if a fresh Protest Petition is filed giving full details, it is maintainable (Para 14)
Facts of the Case :
Present Appeal has been filed against judgment and order passed by High Court , by which cognizance taken by Magistrate against respondent no.2 under Section 395 of “IPC’ had been quashed.
Findings of the Court :
A.No force was found in the submission made on behalf of respondents that as in respect of same incident i.e. dacoity and murder of G, the appellant himself alongwith others was facing criminal trial, proceedings could not be initiated against respondent No.1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible.
B. High Court without taking note of evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the Final Report was not competent .
C. Apart from that there was no occasion for High Court to make sweeping remarks against Magistrate and same remained unjustified and unwarranted in the facts and circumstances of the case. Impugned order of High Court was set aside and that of Magistrate was restored. Appeal was allowed.
JUDGMENT
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the respondent no.2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called ‘IPC’) has been quashed.
2. Facts and circumstances giving rise to this case are that:
A. A dacoity was committed in the house of present appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the appellant naming Ramakant Singh and Anand Kumar Singh alongwith 15 other persons under Sections 396/398 IPC.
B. However, Kameshwar Singh, the real brother of the appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156 (3) of the Code of Criminal Procedure, 1973, (hereinafter called ‘Cr.P.C.’). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property.
C. Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes.
D. After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 IPC etc. on 29.8.2005 against the appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein.
E. It was on 22.9.2005, the appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to respondent Anand Kumar Singh and others vide order dated 2.8.2008.
F. Being aggrieved, the respondent Anand Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the appellant ought to have pursued the first Protest Petition dated 4.4.2005.
Hence, this appeal.
3. Shri Gaurav Agrawal, learned counsel appearing for the appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate’s order of summoning the respondent No.1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty & Ors. v. The State & Anr.,1 1980 Crl. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the
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