The Allahabad High Court while allowing an application observed that a second FIR for the same incident is permissible, it is with respect to the same incident having a different version of evidence.
A Single Bench of Justice Manju Rani Chauhan passed this order while hearing an application under Section 482 filed by one Sangeeta Mishra.
The applicant has preferred the application under Section 482 Cr.P.C assailing validity of an order dated 05.05.2022 passed by Chief Judicial Magistrate, Mathura in Misc Application, vide which application under Section 156(3) Cr.P.C has been rejected, as well as order dated 21.04.2023 2 vide which criminal revision against the aforesaid order has been rejected.
The facts of the case are that a first information report was lodged by Raghvendra Singh, Sub-Inspector on 28.05.2020 at 23:42 hours, under Sections 302 and 201 IPC, bearing Case Police Station Vrindavan, District Mathura, against unknown, alleging that on 03.05.2020 at about 19:14 hours burnt dead body of one unknown person was found near the boundary wall of fields behind Vaishno Devi Dham.
Postmortem report of the aforesaid was conducted, from which it was found that the aforesaid person was beaten to death by throttling and in order to destroy the evidence, the body was burnt and thrown behind Vaishno Devi Dham.
After lodging of the FIR, the police tried by all means to identify the dead body and the same was identified by the applicant Sangeeta Mishra and her son on the basis of article which was recovered near the dead body, which has been narrated by the Investigating Officer in Parcha dated 08.06.2020 In the said parcha, endorsement regarding application for lodging missing report as moved by the applicant has also been endorsed by the Investigating Officer and the same was registered by the police on 31.05.2020 as missing report.
The real fact was that the father-in-law of the applicant executed a family settlement regarding his property and divided the share of their sons which was not within the knowledge of the applicant or her husband. As they were not taken into confidence, a dispute arose among the husband of the applicant, father-in-law, jeth and devar, thus a legal notice was sent by mother-in-law of the applicant to the applicant for compliance of condition of family settlement executed by her husband on 22.06.2019, to which husband of the applicant replied and denied the contents of family settlement.
To resolve the aforesaid dispute, one Chandra Mohan (brother-inlaw of the applicant) came to her husband and requested her husband to be present at native place so that the matter is amicably settled. Accordingly, the applicant’s husband went along with his brother Chandra Mohan at his house on 03.05.2020 and when he did not return, the applicant tried to search for him but he could not be traced.
Due to Covid-19 pandemic in May 2020, the applicant being placed in a difficult situation, could somehow inform the police on 04.05.2020 regarding the disappearance of her husband but the police did not register any missing report. A reminder was given on 28.05.2020 but of no avail. In the meantime, the police, ignoring the request of the applicant to lodge a missing report, have registered the case as Case, as mentioned above.
The police after investigation, on the basis of a confessional statement of the applicant, submitted a charge sheet against the applicant and she was sent to jail. After being released from jail, she moved an application under Section 156(3) Cr.P.C on 16.11.2021 requesting to lodge an FIR against real culprits as she was not being heard by the police authorities.
The court below has rejected the aforesaid application by order dated 05.05.2022 in a mechanical manner without application of mind on the ground that FIR for murder of husband of the applicant, has already been registered as Case under Sections 302 and 201 IPC, Police Station Vrindavan, District Mathura, in which the applicant was found guilty and was sent to jail. Once for murder of the applicant’s husband, the case has been registered and a charge sheet has been submitted against her, the contents in the application as moved by the applicant, appear to be suspicious, not deposing confidence so the same cannot be entertained.
Against the aforesaid order, the revision filed has also been rejected in a mechanical manner ignoring the settled position of law and without considering the fact that once from the contents of application under Section 156(3) Cr.P.C, cognizable offence is made out and in the facts of the case the real culprits still go unnoticed, it was duty of the court to direct for registration of FIR in accordance with law.
Counsel for the applicant while challenging the orders dated 05.05.2022 and 21.04.2023 has invited attention of the court to several judgements passed by the Apex Court and the Court submitting that the order has been passed in a mechanical and arbitrary manner.
The ground taken while rejecting the application under Section 156(3) Cr.P.C, as already stated, is that once FIR for the same offence has already been registered and the applicant has been chargesheeted, thus, in so many words for the same offence, second FIR could not be registered and in the contents narrated about the real culprits cannot be believed.
Counsel for the applicant while addressing the Court on the question as to when second FIR was permissible, he has placed reliance upon a judgement of the Supreme Court in the case of Babu Bhai v State of Gujarat and others, wherein the Court has held that in case of a subsequent FIR, the Court has to examine the facts and circumstances giving rise to both the FIRs and the ‘test of sameness’ is to be applied to find out whether both the FIRs relate to the same incident in respect of same occurrence or in regard to the incident which are two or more parts of the same transaction, and in case where the version in the second FIR is different and they are in respect of two different incidents, the second FIR is permissible.
“Thus, the principle in law which can be understood from the above observation is that in regard to one and single incident, there could not be a case and a counter-case as two FIRs are not permissible in respect to one and same incident because the subsequent FIR is hit by Section 162 Cr.P.C.
Looking into facts of the case, wherein an application under Section 156(3) Cr.P.C has been moved by wife of the deceased, narrating certain facts in order to find out real culprits involved in her husband’s murder who had gone to the extent of managing an FIR lodged against her, wherein she was sent to jail, the application as moved by the applicant should have been entertained in view of the settled position of law as second FIR is maintainable where, there is a different version and also new discovery is made on factual foundation.
Considering the facts of the case, submissions made by counsel for the parties as well as the settled position of law that second FIR for the same incident is permissible when it is with respect to the same incident having a different version of evidence,” the Court observed while allowing the application.
The Court set aside the orders dated 05.05.2022 and 21.04.2023.