# Beekki Verma v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-13
- **Case number:** Application U/S 482 Cr.P.C. No. 19490 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/beekki-verma-v-state-of-u-p-anr-46900
- **Pages:** 6

## Headnote

A. Criminal Law - Maintainability of
second FIR - Application u/s 482 Cr.P.C -
Indian Penal Code,1860 - Sections 41,
411, 413, 392 - Where the substance of
the allegation in the second F.I.R. is
different from the first F.I.R. and the same
is related to a different transaction, the
second F.I.R. would be permissible. (Para
10)

"Test of sameness" - In order to examine the
impact of more than one F.I.Rs., the court
would be required to look into the facts and
circumstances of each case and then apply the
'test of sameness' to find out whether both the
F.I.Rs. relate to the same incident and to the
same occurrence and whether they are in
regard to the incidents which are two or more
476 INDIAN LAW REPORTS ALLAHABAD SERIES
parts of the same transaction, or they relate to
two entirely distinct occurrences. It would be
only if the second F.I.R. relates to the same
incident or where it can be demonstrated that
its substratum is the same as that the first
F.I.R., an argument with regard to the criminal
proceedings initiated pursuant thereto being
vitiated, may be entertained. (Para 13, 15)

In
order
to
constitute
the
'same
transaction', the series of acts alleged
against the accused must be connected
together in some way by proximity of
time, unity of place, purpose or design,
and continuity of action. What would be
necessary is to find out whether the offences
alleged against the accused could be stated to
be committed during the same transaction.
(Para 14)

In the present case, the two F.I.Rs. relate to
different incidents having occurred at different
points of time and the same cannot be said to
be parts of the same transaction. There is no
material to suggest that the substratum of the
second F.I.R. is the same as that of the first
F.I.R. (Para 16, 17)

Application dismissed. (E-3)

Precedent followed:

## Text

3 All. Beekki Verma Vs. State of U.P. & Anr.
475
record, to come to a conclusion that the
necessary alteration in the charge was
required and accordingly proceeded to
allow the application.

19. In view of the settled legal
position in case of any omission in framing
of the charge if it comes to the knowledge
of the court trying the offence, the power to
alter the charge under Section 216 Cr.P.C.
is always vested in the Court to be
exercised at any time before the judgment
is pronounced. The section is in the nature
of an enabling provision for the Court to
exercise
its
power
under
certain
contingencies when the relevant facts with
regard thereto are brought to its notice. In
case where a situation so demands if it
comes to the knowledge of the Court that a
necessity has arisen for the charge to be
altered or added, the Court may do so on its
own or upon an application of the parties.

20. It may be reiterated that the test to
be applied in this regard is that it must be
founded on material available on record
and the principle that has to be kept in mind
is that the charge so framed by the
Magistrate is in accord with materials
produced before him or the subsequent
evidence which comes on record.

21. The contention relating to the
defence of the accused which seeks to
impeach the veracity of the depositions made
by the prosecution witnesses would be a
question to be seen at the trial and need not
be determined at the time of framing of
charge. The stage of appreciation of evidence
on merit by the court comes up only after the
charges have been framed and the trial has
commenced. For the purpose of framing of
charge the court only needs to prima facie
determine that there exists sufficient material
for the commencement of trial.

22. Counsel for the applicants has not
been able to point out any material error or
irregularity in the exercise of power under
Section 216 Cr.P.C. so as to persuade this
Court to exercise its inherent jurisdiction
under Section 482 Cr.P.C.

23. The application thus fails and is
accordingly dismissed.
----------
(2021)03ILR A475
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19490 of 2020

Beekki Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajendra Kumar

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Maintainability of
second FIR - Application u/s 482 Cr.P.C -
Indian Penal Code,1860 - Sections 41,
411, 413, 392 - Where the substance of
the allegation in the second F.I.R. is
different from the first F.I.R. and the same
is related to a different transaction, the
second F.I.R. would be permissible. (Para
10)

"Test of sameness" - In order to examine the
impact of more than one F.I.Rs., the court
would be required to look into the facts and
circumstances of each case and then apply the
'test of sameness' to find out whether both the
F.I.Rs. relate to the same incident and to the
same occurrence and whether they are in
regard to the incidents which are two or more
476 INDIAN LAW REPORTS ALLAHABAD SERIES
parts of the same transaction, or they relate to
two entirely distinct occurrences. It would be
only if the second F.I.R. relates to the same
incident or where it can be demonstrated that
its substratum is the same as that the first
F.I.R., an argument with regard to the criminal
proceedings initiated pursuant thereto being
vitiated, may be entertained. (Para 13, 15)

In
order
to
constitute
the
'same
transaction', the series of acts alleged
against the accused must be connected
together in some way by proximity of
time, unity of place, purpose or design,
and continuity of action. What would be
necessary is to find out whether the offences
alleged against the accused could be stated to
be committed during the same transaction.
(Para 14)

In the present case, the two F.I.Rs. relate to
different incidents having occurred at different
points of time and the same cannot be said to
be parts of the same transaction. There is no
material to suggest that the substratum of the
second F.I.R. is the same as that of the first
F.I.R. (Para 16, 17)

Application dismissed. (E-3)

Precedent followed:

1. Babubhai Vs St. of Guj. & ors., (2010) 12 SCC
254 (Para 6)

2. Nirmal Singh Kahlon Vs St. of Pun., (2009) 1
SCC 441 (Para 7)

3. Ram Lal Narang Vs State (Delhi Admn.),
(1979) 2 SCC 322 (Para 7)

4. Anju Chaudhary Vs St. of U.P. & anr., (2013)
6 SCC 384 (Para 8)

5. T.T. Antony Vs St. of Kerala, (2001) 6 SCC
181 (Para 8)

6. Rameshchandra Nandlal Parikh Vs St. of Guj.
& anr., (2006) 1 SCC 732 (Para 9)

7. Awadesh Kumar Jha & ors. Vs St. of Bihar,
(2016) 3 SCC 8 (Para 10)

8. Pattu Rajan Vs St. of T.N., (2019) 4 SCC 771
(Para 11)

9. Prem Chand Singh Vs St. of U.P. & anr.,
(2020) 3 SCC 54 (Para 12)

Present application has been filed seeking
quashing of charge sheet no. 1 dated
28.08.2018 and summoning order dated
06.01.2020 as well as entire proceedings
u/Ss 41, 411, 413 IPC pending in the
court
of
Chief
Judicial
Magistrate,
Ghazipur.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Sri Rajendra Kumar, learned
counsel for the applicant and Sri Vinod
Kant, learned Additional Advocate General
alongwith Sri Ratnendu Kumar Singh,
learned Additional Government Advocate
appearing for the State-opposite party.

2. The present application under
Section 482 Cr.P.C. has been filed seeking
to quash the charge sheet no. 01 dated
28.8.2018 and summoning order dated
6.1.2020 as well as entire proceedings of
Case No. 58 of 2020 (State vs. Beekki)
arising out of Case Crime No. 256 of 2018,
under Sections 41, 411, 413 IPC, P.S.
Kotwali, District Ghazipur, pending in the
court
of
Chief
Judicial
Magistrate,
Ghazipur.

3. Counsel for the applicant has
sought to contend that in respect of the
same incident, an earlier FIR dated
29.3.2018 was lodged under Section 392
IPC, P.S. Kotwali, District Ghazipur, which
was registered as Case Crime No. 120 of
2018. It is submitted that the present
criminal proceedings having been initiated
pursuant to a subsequent FIR relating to the
same incident, the proceedings are vitiated
and
the
applicant
has
been
falsely
3 All. Beekki Verma Vs. State of U.P. & Anr.
477
implicated by showing false recovery
against him.

4. Learned Additional Advocate
General appearing for the State-opposite
party, has controverted the aforesaid
assertion by pointing out that the earlier
FIR dated 29.3.2018 was lodged under
Section 392 I.P.C. by one Krishnawati
Devi-first
informant
against
unnamed
accused. The allegations in the FIR are in
respect of an incident stated to have
occurred on 29.3.2018 which relate to
chain snatching.

5. It is submitted that the FIR, which
forms the genesis of the present criminal
case is of 26.6.2018, lodged under Sections
41, 411 and 413 I.P.C., P.S. Kotwali,
District Ghazipur. The first informant in the
present FIR is one Divya Prakash Singh,
Sub-inspector, Police Station- Kotwali,
District Ghazipur, and it relates to an
incident dated 25.6.2018, wherein the
applicant and one other person have been
named as accused. The FIR version relates
to recovery of certain stolen property said
to have been found in the possession of the
accused which is stated to have been
retained by the said persons by theft. It is
submitted that the incident dated 29.3.2018,
regarding which, the earlier FIR had been
lodged, is referred to as one of the several
acts of theft relating to which the stolen
property had been recovered from the
accused.

6. The aforementioned question as to
when a second FIR was permissible, was
subject
matter
of
consideration
in
Babubhai vs. State of Gujarat and
others1, wherein it was 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. It
was held as follows :-

"21. In such a case 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 the same occurrence
or are in regard to the incidents which are
two or more parts of the same transaction.
If the answer is affirmative, the second FIR
is liable to be quashed. However, in case,
the contrary is proved, where the version in
the second FIR is different and they are in
respect
of
the
two
different
incidents/crimes,
the
second
FIR
is
permissible. In case in respect of the same
incident the accused in the first FIR comes
forward with a different version or
counterclaim, investigation on both the
FIRs has to be conducted. "

7. The permissibility of second
second
FIR
was
subject
matter
of
consideration in Nirmal Singh Kahlon vs.
State of Punjab2, wherein referring to an
earlier decision in Ram Lal Narang vs.
State (Delhi Admn.)3, it was opined that
the second FIR would be maintainable
where new discovery is made on factual
foundations about a larger conspiracy. It
was stated thus :-

"67. The second FIR, in our
opinion, would be maintainable not only
because there were different versions but
when new discovery is made on factual
478 INDIAN LAW REPORTS ALLAHABAD SERIES
foundations. Discoveries may be made by
the police authorities at a subsequent stage.
Discovery about a larger conspiracy can
also surface in another proceeding, as for
example, in a case of this nature. If the
police authorities did not make a fair
investigation and left out conspiracy aspect
of the matter from the purview of its
investigation, in our opinion, as and when
the same surfaced, it was open to the State
and/or
the
High
Court
to
direct
investigation in respect of an offence which
is distinct and separate from the one for
which the FIR had already been lodged."

8. The question as to when
registration of more than one FIR was
permissible,
again
came
up
for
consideration in the decision in Anju
Chaudhary vs. State of Uttar Pradesh
and another4, and it was held that the said
question would be a mixed question of law
and facts and the test of 'sameness' would
have to be applied. Referring to the earlier
decision in T.T. Antony vs. State of
Kerala5 and reiterating that second FIR in
respect of same offence or incident forming
part of same transaction as contained in the
first FIR, is not permissible, it was held that
where the offence does not fall within the
ambit of the first FIR, the second FIR
would be permissible. The observations
made in this regard in the decision of Anju
Chaudhary (supra) are as follows :-

"15. It has to be examined on the
merits of each case whether a subsequently
registered FIR is a second FIR about the
same incident or offence or is based upon
distinct and different facts and whether its
scope of inquiry is entirely different or not.
It will not be appropriate for the court to
lay
down
one
straitjacket
formula
uniformly applicable to all cases. This will
always be a mixed question of law and
facts depending upon the merits of a given
case."

9. A similar view was taken in an
earlier
decision
in
Rameshchandra
Nandlal Parikh vs. State of Gujarat and
another6, wherein the judgement of the
High Court declining to exercise its powers
under Section 482 Cr.P.C. and refusing to
quash the subsequent complaints-FIRs for
the reason that the subsequent complaints
were not in relation to same offence or
occurrence, was upheld, and it was stated
as follows :-

"14. There is a further distinction
in that while First C.R. No. 67 of 2001
pertained to cases concerning one Ketan
Parikh and entities associated with him in
the crime, the subsequent complaints
pertained to other parties. Further, the FIR
being
investigated
pertained
only
to
criminal acts relating to the Mandvi Branch
(Mumbai), while the subsequent complaints
being investigated by the State Police
pertained to criminal acts at the Shahibaug
(Ahmedabad) branch of the Bank. In our
view, the distinctions drawn by the High
Court are fully justified. The High Court
was right in observing that the FIRs, which
were under challenge before it, were
regarding
independent
and
distinct
offences. Hence, the FIRs could not be
prohibited on the ground that some other
FIR had been filed against the petitioner in
respect of other allegations made against
the petitioner.

15. Moreover, the High Court
was correctly cognizant of limitations while
exercising its powers under Section 482
CrPC, which should not in any event, be
exercised lightly. Reading the impugned
judgment of the High Court as a whole, we
are satisfied that there is no scope for
interference by us. The High Court was
3 All. Beekki Verma Vs. State of U.P. & Anr.
479
justified in declining to exercise its powers
under Section 482 CrPC and in refusing to
interfere with the orders passed by the
learned Chief Metropolitan Magistrate.
Finally, considering the nature of the
allegations involved and the facts and
circumstances of the present case, we too
are
not
inclined
to
exercise
our
extraordinary powers under Article 136 of
the Constitution to interfere."

10. In Awadesh Kumar Jha and
others vs. State of Bihar7, while again
reiterating that there can be no second FIR
in respect of same offence or occurrence or
same transaction giving rise to one or more
offences, it was held that where the
substance of the allegation in the second
FIR is different from the first FIR and the
same is related to a different transaction,
the second FIR would be permissible.

11. A view that a second FIR in
respect of an offence which was different
and distinct was permissible has again been
reiterated in Pattu Rajan vs. State of
Tamil Nadu8.

12. In a recent decision in Prem
Chand Singh vs. State of Uttar Pradesh
and another9 , it has been held that if the
sub-stratum of the two FIRs is common,
the proceedings consequent to the second
FIR would be unsustainable.

13. In order to examine the impact of
more than one FIRs, the Court would be
required to look into the facts and
circumstances of each case and then apply
the 'test of sameness' to find out whether
both the FIRs relate to the same incident
and to the same occurrence and whether
they are in regard to the incidents which are
two or more parts of the same transaction,
or they relate to two entirely distinct
occurrences. It would be only if the second
FIR relates to the same incident or where it
can be demonstrated that its sub-stratum is
the same as that the first FIR, an argument
with regard to the criminal proceedings
initiated pursuant thereto being vitiated,
may be entertained.

14. It is, therefore, seen that lodging
of two FIRs would not be permissible in
respect of one and the same incident. This
would not, however, encompass filing of
counter FIR relating to the same and
connected cognizable offence. What would
be within the scope of prohibition is any
further complaint against the same accused
subsequent to registration of the case under
the Code, for an investigation in that regard
would have already commenced, and
allowing registration of further complaints,
would amount to an improvement of the
facts as stated in the original complaint. In
order to constitute the 'same transaction',
the series of acts alleged against the
accused must be connected together in
some way by proximity of time, unity of
place, purpose or design, and continuity of
action. What would be necessary is to find
out whether the offences alleged against the
accused could be stated to be committed
during the same transaction.

15. The question as to whether the
subsequently registered FIR is the second
FIR relating to the same incident or offence
or is based upon distinct and different facts
and whether its scope of enquiry is entirely
different or not, would have to be examined
on the facts and circumstances giving rise
to the two FIRs.

16. In the facts of the present case, as
pointed out by the learned Additional
Advocate General, the two FIRs relate to
different incidents having occurred at
480 INDIAN LAW REPORTS ALLAHABAD SERIES
different points of time and the same
cannot be said to be parts of the same
transaction. There is no material to suggest
that the sub stratum of the second FIR is
the same as that of the first FIR.

17. Counsel for the applicant has not
been able to demonstrate that the two FIRs
can be said to be related to the same
incident or to the same transaction, as was
sought to be contended by him. He has not
been able to dispute the factual and the
legal position pointed out by the learned
Additional Advocate General, and has also
not been able to point out any other ground
which may warrant interference at this
stage. He makes a prayer for withdrawal of
the present application.

18. The present application under
Section 482 Cr.P.C. stands dismissed,
accordingly.
----------
(2021)03ILR A480
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Article 227 No. 485 of 2021

Rajesh Kumar Gupta ...Petitioner
Versus
Smt. Poonam Devi ...Respondent

Counsel for the Petitioner:
Sri Abu Bakht, Sri Nitin Jain, Sri Pramod Kumar
Jain (Senior Adv.)

Counsel for the Respondent:
C.S.C., Sri Siddharth Nandan

A. Constitution of India,1950-Article 227application-Consolidation
of
suits
and
proceedings-rejection-the petitioner filed
two suits against the respondent for
seeking relief in the court having different
jurisdiction-In
previously
instituted
suit(Original Suit), he claimed relief for
permanent injunction for restraining the
tenant from obstructing the light and air
facilities of the plaintiffs-the Subsequent
Suit (SCC suit) pending before the Small
Cause
Court
for
eviction
of
the
defendant/tenant for arrears of rent and
constructions raised without the consent
of the landlords-the judge, court of Small
Causes cannot grant the relief claimed in
the Original Suit-Section 10 C.P.C. would
not apply, both the proceedings should be
in suits between the same parties and it
would not apply to proceedings initiated
under
any
other
Statute-Hence,
no
interference requires.(Para 3 to 12)

The Petition is dismissed. (E-5)

List of Cases cited: -

1. Anandan Gupta Vs Narain Agarwal & ors.,
(1984) 2 ARC 447

2. Chandra Swaroop Sinha Vs Smt. Manorama
Singh, (1981) AIR Alld. 230

3. Ram Narain Gupta (Since deceased) & ors.Vs
Hari Om Agarwal & anr.(2012) 1 ARC 664

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Pramod Kumar Jain,
learned Senior Counsel assisted by Sri Abu
Bakht, learned counsel for the petitionertenant and Sri Siddharth Nandan, learned
counsl for the respondent-landlord and
perused the record.

2. Present petition has been filed
challenging the impugned order dated
17.2.2020 passed by J.S.C.C./Civil Judge
(S.D.), Deoria and the order dated 13.11.2020
passed by the District Judge, Deoria.

3. By the impugned order dated
17.2.2020 application being paper no.