# Awadhesh Singh v. State of U.P. and others - **Citation:** (2008) 2 ILRA 483 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-04-09 - **Case number:** Criminal Misc. Application No. 6278 of 2008 - **Bench:** Vijay Kumar Verma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-singh-v-state-of-u-p-and-others-41132 - **Pages:** 3 ## Headnote Code of Criminal Procedure Section 156 (3)-Rejection of application for lodging FIR-on the ground-the basis of information given by the eyewitnessinvestigation going on-No second F.I.R. for same occurrences can be lodgedheld-second FIR is not barred-but the order passed by Magistrate require no interference. Held: Para 7 Therefore, having regard to the facts and circumstances of this case, the learned Chief Judicial Magistrate, Banda had not committed any illegality in rejecting the application under Section 156(3) Cr.P.C. moved by the application Awadhesh Singh for lodging second F.I.R. regarding the murder of his brother Kamlesh Singh against the opposite parties no. 2 to 5. Although, as held by this Court in the case of Vipin Chaudhary and others Vs. State of U.P. and others 2005 (51) ACC 533, second F.I.R. regarding the same incident is not barred, but for the reasons mentioned herein-above, in instant case, second F.I.R. cannot be permitted to be lodged, as the first F.I.R. of case crime no. 206/2007 was lodged by the eyewitnesses of the incident of murder of deceased Kamlesh Singh. The law laid down by Hon'ble Apex Court in the case of Vikram Singh and others Vs. State of Maharashtra (supra) is not helpful in instant case for the reasons mentioned above. Case law discussed: (2008) 1 Supreme Court Cases (Cri) 362, 2005 (51) ACC 533, (2008) 1 SCC (Cri) 440 ## Text 2 All] Awadhesh Singh V. State of U.P. and others 483 And it is stated in paragraph 26 of the writ petition a fact not denied in the counter affidavit that on 27.2.2008 thousands of persons of the Nishad community marched in procession against the use of loader machines and damaged and burnt them. We part by saying that an indifferent attitude of the administration to peoples grievances can result in people taking law into their own hands for securing justice. 21. In view of the aforesaid discussion we are of the opinion that the Writ Petition lacks merits and is liable to be dismissed. We do so accordingly. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 09.04.2008 BEFORE THE HON'BLE VIJAY KUMAR VERMA, J. Criminal Misc. Application No. 6278 of 2008 Awadhesh Singh ...Applicant Versus State of U.P. and others...Opposite parties Counsel for the Applicant: Sri Jitendra Prasad Mishra Counsel for the Opposite Parties: A.G.A. Code of Criminal Procedure Section 156 (3)-Rejection of application for lodging FIR-on the ground-the basis of information given by the eyewitnessinvestigation going on-No second F.I.R. for same occurrences can be lodgedheld-second FIR is not barred-but the order passed by Magistrate require no interference. Held: Para 7 Therefore, having regard to the facts and circumstances of this case, the learned Chief Judicial Magistrate, Banda had not committed any illegality in rejecting the application under Section 156(3) Cr.P.C. moved by the application Awadhesh Singh for lodging second F.I.R. regarding the murder of his brother Kamlesh Singh against the opposite parties no. 2 to 5. Although, as held by this Court in the case of Vipin Chaudhary and others Vs. State of U.P. and others 2005 (51) ACC 533, second F.I.R. regarding the same incident is not barred, but for the reasons mentioned herein-above, in instant case, second F.I.R. cannot be permitted to be lodged, as the first F.I.R. of case crime no. 206/2007 was lodged by the eyewitnesses of the incident of murder of deceased Kamlesh Singh. The law laid down by Hon'ble Apex Court in the case of Vikram Singh and others Vs. State of Maharashtra (supra) is not helpful in instant case for the reasons mentioned above. Case law discussed: (2008) 1 Supreme Court Cases (Cri) 362, 2005 (51) ACC 533, (2008) 1 SCC (Cri) 440 (Delivered by Hon'ble Vijay Kumar Verma, J.) Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant and learned A.G.A. for the State and perused the record. 2. By means of this application under Section 482 of the Code of Criminal Procedure (in short, the Cr.P.C.), order dated 10.03.2008 passed by the C.J.M., Banda on the application of the applicant under Section 156(3) Cr.P.C. has been challenged. 3. By the impugned order, the application moved by the applicant under Section 156(3) Cr.P.C. has been rejected. 484 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 4. From the record, it transpires that an F.I.R. was lodged at P.S. Kamasin by Shankar Singh s/o Shiv Nayak Singh resident of Shohut. On the basis of that F.I.R., a case under Section 302 I.P.C. at case crime no. 206/07 was registered against unknown persons on 27.11.2007 at 1.10 a.m. It was alleged in that F.I.R. that when Kamlesh Singh, brother of the informant along with Dhanpat S/o Bahori was irrigating his field from the tube-well of Indresh Singh on 26.11.2007 at about 9.30 p.m., four unknown persons committed his murder by causing injuries to him by firearms. During pendency of the investigation of that case, the applicant Awadesh Singh, who is also the brother of the informant Shankar Singh moved an application under Section 156(3) Cr.P.C. in the Court of C.J.M. Banda nominating opposite party no. 2 to 6 as accused. It is alleged in that F.I.R. that his brother Kamlesh taking Rs.46,000/- from his mother had gone with the accused Brij Kumar Singh, Ram Chandra Singh, Dhanpat, Pappu and Ram Bharat Singh for purchasing building material to construct the house, who committed his murder at about 9.30 p.m. and robbed the money, which he was carrying. After calling for a report from police station concerned, the learned Chief Judicial Magistrate vide impugned order dated 10.03.2008 has rejected the application under Section 156(3) Cr.P.C. vide impugned order. Being aggrieved, the applicant has approached this Court to quash that order. 5. The application moved by the applicant under Section 156(3) Cr.P.C. has been rejected by the learned C.J.M., Banda vide impugned order mainly on the ground that F.I.R. regarding murder of Kamlesh has already been lodged at P.S. Kamasin at case crime no. 206/07 and investigation is going on and hence, for the same murder second F.I.R. cannot be lodged. 6. Placing reliance on the case of Vikram and others Vs. State of Maharashtra (2008) 1 Supreme Court Cases (Cri) 362, it is submitted by learned counsel for the applicant that second F.I.R. in this case is not barred, as first F.I.R. was not properly lodged by S.O. P.S. Kamasin. It is further submitted that application naming the opposite party nos. 2 to 6 was submitted by Shankar Singh regarding the murder of Kamlesh, but S.O. P.S. Kamasin did not lodge the F.I.R. on the basis of that application and F.I.R. against unknown persons has been lodged and hence, on this ground also second F.I.R. is not barred. 7. Having heard learned counsel for the parties and carefully gone through the case of Vikram and others Vs. State of Maharashtra (supra), I am of the considered view that there is no justification to direct registration of second F.I.R. in this case regarding murder of the deceased Kamlesh Singh. From the First Information Report (Annexure -I), it is revealed that Dhanpat was the eyewitness of the incident of murder of Kamlesh Singh as he was helping the deceased in irrigating his field from the tube well of Indresh Singh. The informant Shankar Singh has also shown himself as the eyewitness of that incident. First Information Report was lodged by the informant Shankar Singh against unknown persons and it is specifically mentioned in that report that four unknown persons had committed the murder of Kamlesh Singh by causing injuries to him by firearms. The informant 2 All] Gopal Kumar Mathur V. State of U.P. and another 485 Shankar Singh has not made any complaint that his F.I.R. was not recorded properly by S.O. P.S. Kamasin. He did not move any application under Section 156(3) Cr.P.C. for lodging another F.I.R. Investigation of the case registered at crime no. 206/2007 is going on. Therefore, having regard to the facts and circumstances of this case, the learned Chief Judicial Magistrate, Banda had not committed any illegality in rejecting the application under Section 156(3) Cr.P.C. moved by the application Awadhesh Singh for lodging second F.I.R. regarding the murder of his brother Kamlesh Singh against the opposite parties no. 2 to 5. Although, as held by this Court in the case of Vipin Chaudhary and others Vs. State of U.P. and others 2005 (51) ACC 533, second F.I.R. regarding the same incident is not barred, but for the reasons mentioned herein-above, in instant case, second F.I.R. cannot be permitted to be lodged, as the first F.I.R. of case crime no. 206/2007 was lodged by the eyewitnesses of the incident of murder of deceased Kamlesh Singh. The law laid down by Hon'ble Apex Court in the case of Vikram Singh and others Vs. State of Maharashtra (supra) is not helpful in instant case for the reasons mentioned above. 8. Next submission made by learned counsel for the applicant is that F.I.R. was lodged on 26.11.2007, but no action has been taken so far by the Investigating Officer and hence, direction should be issued to the Investigating Officer concerned to make proper investigation. This prayer of the applicant's counsel may be accepted. The Hon'ble Apex Court in the case of Sakiri Basu Vs. State of U.P. and others (2008) 1 SCC (Cri) 440 has held that under the provisions of Section 156(3) Cr.P.C., the Magistrate has implied jurisdiction to monitor the investigation. Hence, direction can be issued to the Chief Judicial Magistrate, Banda to ensure proper investigation of case crime no. 206 of 2007. In the result, the application under Section 482 Cr.P.C. is hereby rejected. However the Chief Judicial Magistrate, Banda is directed to issue necessary directions to the Station Officer of Police Station Kamasin (Banda) to make proper investigation of case crime no. 206/07 under Section 302 I.P.C. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.04.2008 BEFORE THE HON'BLE DR. B.S. CHAUHAN, J. THE HON'BLE ARUN TANDON, J. Civil Misc. Writ Petition No. 52599 of 2000 Gopal Kumar Mathur ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri D.C. Mathur Sri Rajeev Gupta Sri. Ashok Khare Counsel for the Respondents: Sri. R.B. Pradhan S.C. Constitution of India, Article 226-Service law-dismissal order-petitioner working as executive engineer-expended excess money than sanctioned-no allegation of misappropriation or embezzlement of public money or corruptive motive or any loss caused to the Government-heldpunishment of dismissaldisproportionate-liable to be quashed.