# Pundrik Kumar Pandey @ Pundrik Pandey v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Case number:** Crl. Misc. Writ Petition No. 8151 of 2024
- **Bench:** Mrs. Sangeeta Chandra, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pundrik-kumar-pandey-pundrik-pandey-v-state-of-u-p-ors-51172
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code,1860-
Two FIR lodged against the Petitioner-alleged
that both are on same cause of action-Initial FIR
was lodged on 15.10.2024 by the Police official
for general information regarding incident which
happened during the immersion procession of
Devi Durga idols where one person was shot -
as a result the crowd got angry and destroyed
the shops of other community-whereas the
second FIR was lodged on 18.10.2024 at 05:11
pm by the sitting MLA of Mahasi Constituency
for the incident where the named accused along
with others were holding Dharna Pradarshan
with the body of the deceased victim and not
letting the Authorities carrying out their public
duties regarding autopsy of the deceased.

"Consequence test" -if an offense forming part
of the second FIR arises as a consequence of
the offence alleged in the first FIR-then the
offences covered by both the FIRs are the same
and second FIR is impermissible. Prima facie
second FIR is not part of the same transaction.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

282 INDIAN LAW REPORTS ALLAHABAD SERIES
a member in Smt. Kesari Devi v. State of
U.P., (2005) 4 A.W.C. 3563 : (2005 All LJ
(NOC) 50) wherein after noticing large
number of judgments of the Hon'ble
Supereme Court, the Court reached the
conclusion that such an applicant cannot
be a party in litigation for the reason that
he cannot be a person aggrieved. The said
judgment was challenged before the
Hon'ble Apex Court in S.L.P. (Civil) No.
19761 of 2005 and the same was dismissed
vide order dated 3-10-2005."

26. Thus in Amin Khan (Supra), the
application seeking leave to file Special
Appeal was rejected in view of the peculiar
facts of the case where the Court came to
the conclusion that the applicant was not a
person aggrieved. However, in the present
case, the complainants, or at least those
complainants who admittedly own flats in
Garden View Apartments, have a statutory
right to become members of the Society
and they have an interest in proper
functioning of the society and proper
maintenance of the apartment complex and,
therefore, the complainants in this case are
persons aggrieved.

27. Further, the petitioners themselves
have chosen to implead two of the eight
complainants as opposite party nos. 2 and 3
to the Writ Petition even when the
petitioners' contention is that they do not
own any flat in the apartment complex,
which shows that the petitioners treat them
to be necessary or at least proper parties to
the Writ Petition. The petitioners admit that
at least one of the complainants Ms. Varsha
Chatlani owns an apartment in the complex
and that she is a member of the society and
yet she has not been arrayed as an opposite
party to the Writ Petition whereas she is a
person aggrieved and she would be affected
by the outcome of the Writ Petition.
Therefore, the Writ Petition suffers from
the defect of non-joinder of necessary
parties, which defect was not removed
even after a specific plea having been
raised in the counter affidavit. However,
as this Court has already examined the
merits of the matter, the Writ Petition is
not being dismissed on the preliminary
ground alone.

28. In view of foregoing discussion,
this court is of the considered view that
there is no illegality in the impugned order
dated 06.02.2015, passed by the Deputy
Registrar, Firms, Societies and Chits,
Lucknow Division, Lucknow, and the order
does not cause a failure of justice to the
petitioners. Therefore, the impugned order
does not warrant any interference by this
Court in exercise of its extraordinary Writ
jurisdiction vested in it under Article 226 of
the Constitution of India.

29. The Writ Petition lacks merit and
the same is dismissed.
----------
(2024) 10 ILRA 282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.10.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Crl. Misc. Writ Petition No. 8151 of 2024
Alongwith
Crl. Misc. Writ Petition No. 8254 of 2024

Pundrik Kumar Pandey @ Pundrik Pandey
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Kirti Mishra, Dharmesh Kumar Dwivedi
10 All. Pundrik Kumar Pandey @ Pundrik Pandey Vs. State of U.P. & Ors.
283
Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code,1860-
Two FIR lodged against the Petitioner-alleged
that both are on same cause of action-Initial FIR
was lodged on 15.10.2024 by the Police official
for general information regarding incident which
happened during the immersion procession of
Devi Durga idols where one person was shot -
as a result the crowd got angry and destroyed
the shops of other community-whereas the
second FIR was lodged on 18.10.2024 at 05:11
pm by the sitting MLA of Mahasi Constituency
for the incident where the named accused along
with others were holding Dharna Pradarshan
with the body of the deceased victim and not
letting the Authorities carrying out their public
duties regarding autopsy of the deceased.

"Consequence test" -if an offense forming part
of the second FIR arises as a consequence of
the offence alleged in the first FIR-then the
offences covered by both the FIRs are the same
and second FIR is impermissible. Prima facie
second FIR is not part of the same transaction.

W.P. dismissed. (E-9)

List of Cases cited:

1. Babubhai Vs St. of Guj. & ors.reported in
(2010) 12 SCC 254

2. Ram Lal Narang Vs St. (Delhi Administration)
reported in (1979) 2 SCC 322,

3. T.T. Antony Vs St. of Kerala reported in
(2001) 6 SCC 181

4. Upkar Singh Vs Ved Prakash reported in
(2004) 13 SCC 292

5. Amitbhai Anilchandra Shah Vs Central Bureau
of Investigation & anr.reported in (2013) 6 SCC
348

6. Chirra Shivraj Vs St. of Andhra Pradesh
reported in (2010) 14 SCC 444,

7. C. Muniappan Vs St. of T.N. reported in
(2010) 9 SCC 567
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Mohd. Faiz Alam Khan, J.)

1. We have heard Shri Abhishek
Srivastava, counsel for the petitioners at
length and the learned A.G.A. who appears
for the State-respondents and Shri Manoj
Kumar Singh, the counsel appearing for the
informant, the sitting MLA of Mahasi
Constituency, Bahraich.

2. Since both writ petitions arise out
of same F.I.R. they are being dealt with by
a common order.

3. It is the case of the petitionerPundrik Kumar Pandey @ Pundrik Pandey,
that the Opposite party no.4, the sitting MLA
has been representing Mahasi Constituency
for the past 15 years and the applicantPundrik Kumar Pandey @ Pundrik Pandey,
was earlier working as a Journalist and he
used to write against the Opposite party no.4,
as a result whereof the Opposite party no.4
became inimical to the petitioner. The
petitioner is currently posted as a Teacher in
Government
Primary
School,
U.P.S.
Chaugoi, Block-Jamuha, District Shravasti,
and the deceased Ram Gopal Mishra was the
cousin brother-in-law of the petitioner and for
this reason the petitioner went along with the
dead body of Ram Gopal Mishra to the
Dharna site near the Medical College. He
wanted to only accompany the body when it
was being taken for post mortem. However,
more than 5000 people had gathered near the
dead body and they were protesting. Since
Opposite party no.4 is an influential person
he has engineered the lodging of the
impugned F.I.R. to settle his personal grudge
against the petitioner under Sections 191(2),
191(3), 3(5), 109(1), 324(2), 351(3), 352 &
125 of the B.N.S.
284 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The F.I.R. was lodged after eight
days of the incident and it is pre-meditated
and delayed and lodged after much
deliberation. The petitioner has a gun
license and the Respondent no.4 wants to
get such license cancelled, therefore, a false
allegation has been made in the F.I.R. that a
shot was fired in air.

5. The Counsel appearing on behalf of
the applicants/ petitioners namely Arpit
Srivastava, Anuj Kumar Singh @ Anuj
Singh Raikwar, Shubham Kumar @
Shubham Mishra in Criminal Misc. Writ
Petition
No.8254
of
2024
regarding
challenge being raised to the same F.I.R.
has argued before this Court that the
Opposite party no.4, sitting MLA of
Mahasi Constituency had lodged the
impugned F.I.R. on 18.10.2024 under
Sections 191(2), 191(3), 3(5), 109(1),
324(2), 351(3), 352 & 125 of the B.N.S.
2023 at Police Station Kotwali Nagar,
District Bahraich, against seven named
accused persons namely Arpit Srivastava,
Petitioner no.1; Anuj Kumar Singh @ Anuj
Singh Raikwar, Petitioner no.2; Shubham
Kumar @ Shubham Mishra, Petitioner
no.3; Kushmendra Chaudhary, Manish
Chandra Shukla, Pundarik Pandey and
Subhanshu Singh Rana and some unknown
persons in relation to an alleged incident
that took place on 13.10.2024. In the F.I.R.,
the allegation was that the petitioners as
well as other co-accused along with several
other persons had made it difficult for the
Police and the District Administration in
getting the dead body of Ram Gopal
Mishra to the mortuary and created a
ruckus which led to firing of a gun shot in
the air and also of smashing of the wind
screen of vehicle of the Respondent no.4.

6. It has been submitted that the
impugned F.I.R. is the second F.I.R. in
relation to the same incident as Shri Dinesh
Kumar Pandey, Inspector Incharge of
Police Station Kotwali Nagar, District
Bahraich,
had
earlier
lodged
F.I.R.
No.0346 of 2024 on 15.10.2024 under
Sections 191(2), 191(3), 3(5), 190, 131,
115(2), 352, 351(3), 125, 326(g), 326(f),
3(5), 121(1) of the B.N.S. 2023 & Criminal
Law Amendment Act, 1932 at 09:11 AM at
Police Station Kotwali Nagar, District
Bahraich, wherein similar facts have been
mentioned. It has been submitted that the
Petitioner no.1 is a social worker and Nagar
Adhyaksh of the Bhartiya Janta Yuva
Morcha, Bahraich since 16.09.2021, and he
is pursing his career in politics. Petitioner
no.2 is also a social worker and a farmer
and Petitioner no.3 is a Graduate and
presently working in a private Construction
Company. The impugned F.I.R. being the
second F.I.R. for the same incident ought to
be quashed in view of the law settled by the
Hon'ble the Supreme Court in the case of
Babubhai Vs. State of Gujarat and others
reported in (2010) 12 SCC 254.

7. The counsel for the petitioners has
pointed out Paragraphs-2 and 3 of the
judgment in Babubhai Vs. State of Gujarat
and others, from perusal whereof it is
evident that on 07.07.2008 some altercation
took place between members of Bharwad
and Koli Patel Communities regarding
plying of rickshaws in the area surrounding
Dhedhal village of District Ahmedabad,
Gujarat. On the next day i.e. on 08.07.2008
a case, Case Crime No.I-154/2008 was
registered at 1730 hours in Police Station
Bavla, under Sections 147, 148, 149, 302,
307, 332, 333, 436 and 427 of the Penal
Code, 1860, for the incident which had
occurred at Village Dhedhal wherein the
Sub-Inspector of Bavla Police Station had
stated that while he was patrolling in Bavla
town, he received a message from the
10 All. Pundrik Kumar Pandey @ Pundrik Pandey Vs. State of U.P. & Ors.
285
Station House Officer at around 10:00 AM
that some altercation/ incident had taken
place between two communities at Dhedhal
Crossroads.
The
Sub-Inspector
Bavla
Police Station thereafter reached the spot
where a clash was going on between two
communities in Dhedhal Village. He
contacted the Police Control Room and the
Deputy Superintendent of Police sent reenforcement and when the police reached
the spot around 2000 to 3000 persons from
both communities armed with various
weapons were attacking each other. The
police resorted to lopping tear gas shells as
well as lathi charge to disperse the crowd.
Ultimately several rounds of firing were
resorted to in order to disperse the mob. In
the said incident, more than 20 persons
were injured and three houses of members
of the Bharwad Community were also set
on fire. One person also died. Several
police personnel were also injured. The
said F.I.R. did not mention the name of any
accused. However, another F.I.R. bearing
Case number, CR No.I-155/2008 was
registered at Bavla Police Station on the
same day i.e. on 08.07.2008 at 2235 hours
by one Babubhai Popatbhai Koli Patel and
he alleged that an incident took place on
the same day at around 9:15 a.m. in the
Morning in Dhedhal Village. In such F.I.R.
he named 18 persons as accused. As per the
F.I.R., an incident had occurred on
07.07.2008 in the evening at about 06.30
P.M. It also related to plying Rickshaws
and Chhakdas and it also related to
altercation between Bharwad and Koli
Patel Communities. The complainant stated
that the named accused persons not only
extended threats to the complainantinformant and his cousin but they also
halted vehicles on the road. The informant
stated that there were 10-12 persons
belonging
to
Bharwad
community
assaulting his cousin with sticks. He also
saw some named accused from Bharwad
community of Dhedhal Village having
Tamancha like weapons in their hands and
instigating other persons to indulge in
violence he named several accused and
stated that they assaulted his cousin as well
as other Rickshaw pullers saying that they
should not pass through the road which
belonged to Bharwads. The complainant
tried to rescue his cousin but they were
stopped and such named accused started
the assaulting and abusing him. The
informant made specific mention of certain
accused inflicting sticks blows on his
cousin
due
to
which
he
became
unconscious and the mob thereafter beat up
his cousin and other Bharwads from
Dhedhal village had also arrived. The
details in the F.I.R. related to the vehicles
that were stopped and also related to
specific incident of the cousin of the
informant being attacked with deadly
weapons like Revolver and Sticks etc.
causing serious injuries.

8. From a perusal of the facts as
mentioned in the judgment cited before us
in Babubhai, it is evident that the accused
in both cases filed special criminal
applications praying for investigation of the
F.I.R. by an Independent Agency like CBI
and also praying for quashing of the CR
No.I-154 and CR No.I-155/2008 registered
at Bavla Police Station.

9. They also prayed for setting
aside of the proceedings undertaken by the
Sessions Court. The High Court quashed
the F.I.R. registered as CR No.I-155/2008
and clubbed the investigation of the F.I.R.
along with investigation of the other F.I.R.
bearing CR No.I-154 of 2008 to the extent
it was feasible. The Court also transferred
the investigation to the State CID Crime
Branch and directed a new Investigating
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer to investigate with a further
clarification
that
quashing
of
their
subsequent F.I.R. would not mean that the
accused in respect of the second F.I.R. had
been discharged of the offences as they
would continue to face the charges in the
initial Criminal Case CR No.I-154 of 2008
in which they also stood arrested.

10. The Supreme Court while
considering the Appeal preferred by the
appellants who were the accused, noted the
arguments raised by the learned Senior
Counsel appearing for the parties in the
Appeal that the High Court reached the
correct conclusion that both crimes were
two parts of the same transaction and they
occurred at the same place and the version
given by Babubhai Popatbhai Koli Patel in
CR No.I-155 of 2008 cannot be considered
a counter version giving rise to a cross
case. The Senior counsel had requested the
Supreme Court to dismiss the Appeal.
However,
the
Supreme
Court
after
considering the law as laid down in Ram
Lal
Narang
Vs.
State
(Delhi
Administration) reported in (1979) 2
SCC 322, and in T.T. Antony Vs. State of
Kerala reported in (2001) 6 SCC 181,
made observations in Paragraph-13 & 14
which are being quoted hereinbelow:-

"13. In Ram Lal Narang v. State
(Delhi Admn.) this Court considered a
case wherein two FIRs had been lodged.
The first one formed part of a subsequent
larger conspiracy which came to light on
receipt of fresh information. Some of the
conspirators were common in both the
FIRs and the object of conspiracy in both
the cases was not the same. This Court
while considering the question as to
whether
investigation
and
further
proceedings on the basis of both the FIRs
was permissible held that no straitjacket
formula can be laid down in this regard.
The only test whether two FIRs can be
permitted to exist was whether the two
conspiracies were identical or not. After
considering the facts of the said case, the
Court came to the conclusion that both
conspiracies were not identical. Therefore,
lodging of two FIRs was held to be
permissible.

14. In T.T. Antony v. State of
Kerala this Court dealt with a case wherein
in respect of the same cognizable offence
and same occurrence two FIRs had been
lodged and the Court held that: "There can
be
no
second
FIR
and
no
fresh
investigation on receipt of every subsequent
information in respect of the same
cognizable offence or same occurrence
giving rise to one or more cognizable
offences." (emphasis supplied)

The investigating agency has to
proceed only on the information about
commission of a cognizable offence which
is first entered in the police station diary by
the officer-in-charge under Section 158 of
the Code of Criminal Procedure, 1973
(hereinafter called "CrPC") and all other
subsequent information would be covered
by Section 162 CrPC. for the reason that it
is the duty of the Investigating officer not
merely to investigate the cognizable offence
reported in the FIR but also other
connected offences found to have been
committed in the course of the same
transaction or the same occurrence and the
investigating officer has to file one or more
reports under Section 173 CrPC. Even
after submission of the report under
Section 173(2) CrPC, if the investigating
officer
comes
across
any
further
information
pertaining
to
the
same
incident, he can make further Investigation,
but it is desirable that he must take the
10 All. Pundrik Kumar Pandey @ Pundrik Pandey Vs. State of U.P. & Ors.
287
leave of the court and forward the further
evidence, if any, with further report or
reports under Section 173(8) CrPC. In case
the officer receives more than one piece of
information in respect of the same incident
involving one or more than one cognizable
offences such information cannot properly
be treated as an FIR as it would, in effect,
be a second F.I.R. and the same is not in
conformity with the scheme of Cr.P.C."

11. The Court also considered Upkar
Singh Vs. Ved Prakash reported in
(2004) 13 SCC 292, in Paragraph 16 which
is being quoted hereinbelow:-

 "16. This Court considered the
judgment in T.T. Antony and explained that
the judgment in the said case does not
exclude the registration of a complaint in
the nature of counterclaim from the
purview of the Court. What had been laid
down by this Court in the aforesaid case
law is that any further complaint by the
same
complainant
against
the
same
accused, subsequent to the registration of a
case, is prohibited under Cr.P.C. because
an investigation in this regard would have
already started and further the complaint
against the same accused will amount to an
improvement on the facts mentioned in the
original
complaint,
hence,
will
be
prohibited under Section 162 Cr.P.C.
However, this rule will not apply to a
counterclaim by the accused in the first
complaint or on his behalf alleging a
different version of the said incident. Thus,
in case, there are rival versions in respect
of the same episode, the investigating
agency would take the same on two
different FIRs and investigation can be
carried under both of them by the same
investigating agency and thus, filing an FIR
pertaining to a counterclaim in respect of
the same incident having a different version
of events, is permissible."

12. The Court considered other
judgments as well in Paragraphs 17, 18 and
19 which are being quoted hereinbelow:-

"17. In Rameshchandra Nandlal
Parikh v. State of Gujarat reported in
(2006) 1 SCC 732, this Court reconsidered
the earlier judgment including T.T. Antony
and held that in case the FIRs are not in
respect of the same cognizable offence or
the same occurrence giving rise to one or
more cognizable offences nor are they
alleged to have been committed in the
course of the same transaction or the same
occurrence as the one alleged in the first
FIR, there is no prohibition in accepting
the second FIR.

18. In Nirmal Singh Kahlon v.
State of Punjab reported in (2009) 1 SCC
441, this Court considered a case where an
FIR had already been lodged on 14-6-2002 in
respect of the offences committed by certain
individuals. Subsequently, the matter was
handed over to the Central Bureau of
Investigation
(CBI),
which
during
investigation collected huge amount of
material and also recorded statements of large
number of persons and CBI came to the
conclusion that a scam was involved in the
selection process of Panchayat Secretaries.
The second FIR was lodged by CBI. This
Court after appreciating the evidence, came to
the conclusion that matter Investigated by CBI
dealt with a larger conspiracy. Therefore, this
investigation has been on a much wider
canvass and held that second FIR was
permissible and required to be investigated.

19. The Supreme Court held as
under:
288 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
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."

(emphasis supplied by us)

13. Thereafter, the Supreme Court
examined the Appeal in the light of the
settled legal propositions as mentioned in
the cases cited hereinabove.

14. The Court also considered the
question of tainted investigation and made
certain observations with regard to the plea
raised regarding malice in law and the duty
of Investigating Agency and emphasized
that where the Court comes to a conclusion
that there was a serious irregularity in the
investigation that had taken place, the
Court may direct a further investigation
under
Section
173(8)
Cr.PC,
even
transferring
the
investigation
to
an
independent agency, rather than directing a
reinvestigation. Several binding precedents
were considered with regard to the Court's
interference where desired in exceptional
circumstances to prevent miscarriage of
criminal justice and the direction which the
High Court / Any Superior Court can give
in such matters to ensure fair trial and fair
investigation. The Court did not interfere in
the order passed by the High Court but only
modified it to the extent that the Chargesheet in both the cases and any other
consequent thereto were quashed and it
observed that in case any of the accused
could not get bail because of pendency of
the Special Leave to Appeal before the
Court, it would be open for him to apply
bail or any other relief before the
appropriate Forum.

15. The counsel for the petitioners has
failed to point out as to how his case is
covered with the facts as mentioned
hereinabove with regard to Babubhai Vs.
State of Gujarat as cited by the counsel for
the petitioners.

16. Shri Alok Kirti Mishra, has also
cited a judgment rendered in Amitbhai
Anilchandra Shah Vs. Central Bureau of
Investigation and Another reported in
(2013) 6 SCC 348, and has referred to
Paragraph-37 thereof which is being quoted
hereinbelow:-

"37. This Court has consistently
laid down the law on the issue interpreting
the Code, that a second FIR in respect of
an offence or different offences committed
in the course of the same transaction is not
only impermissible but it violates Article 21
of the Constitution. In T.T. Antony. this
Court
has
categorically
held
that
registration of second FIR (which is not ca
cross-case) is violative of Article 21 of the
Constitution. The following conclusion in
paras 19, 20 and 27 of that judgment are
relevant which read as under:

"19. The scheme of CrPC is that
an officer in charge of a police station has
to commence investigation as provided in
Section 156 or 157 CrPC on the basis of
10 All. Pundrik Kumar Pandey @ Pundrik Pandey Vs. State of U.P. & Ors.
289
entry of the first information report, on
coming to know of the commission of a
cognizable offence. On completion of
investigation and on the basis of the
evidence collected, he has to form an
opinion under Section 169 or 170 CrPC, as
the case may be, and forward his report to
the Magistrate concerned under Section
173(2) CrPC. However, even after filing
such a report, if he comes into possession
of further information or material, he need
not register a fresh FIR; he is empowered
to make further investigation, normally
with the leave of the court, and where
during further investigation he collects
further evidence, oral or documentary, he
is obliged to forward the same with one or
more further reports; this is the import of
sub-section (8) of Section 173 CrPC.

20. From the above discussion it
follows that under the scheme of the
provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 CrPC only the
earliest or the first information in regard to
the commission of a cognizable offence
satisfies the requirements of Section 154
CrPC. Thus there can be no second FIR
and consequently there can be no fresh
investigation on receipt of every subsequent
information in respect of the same
cognizable offence or the same occurrence
or incident giving rise to one or more
cognizable
offences.
On
receipt
of
information about a cognizable offence or
an incident giving rise to a cognizable
offence or offences and on entering the FIR
in the station house diary, the officer in
charge of a police station has to investigate
not merely the cognizable offence reported
in the FIR but also other connected
offences found have been committed in the
course of the same transaction or the same
occurrence and file one or more reports as
provided in Section 173 CrPC.

27. A just balance between the
fundamental rights of the citizens under
Articles 19 and 21 of the Constitution and
the expansive power of the police to
investigate a cognizable offence has to be
struck by the court. There cannot be any
controversy that sub-section (8) of Section
173 CrPC empowers the police to make
further
investigation,
obtain
further
evidence (both oral and documentary) and
forward a further report or reports to the
Magistrate. In Narang case it was,
however, observed that it would be
appropriate
to
conduct
further
investigation with the permission of the
court. However, the sweeping power of
investigation does not warrant subjecting a
citizen each time to fresh investigation by
the police in respect of the same incident,
giving rise to one or more cognizable
offences,
consequent
upon
filing
of
successive FIRs whether before or after
filing the final report under Section 173(2)
Cr.PC. It would clearly be beyond the
purview of Sections 154 and 156 Cr.PC,
nay, a case of abuse of the statutory power
of investigation in a given case. In our view
a case of fresh investigation based on the
second or successive FIRs, not being a
counter-case, filed in connection with the
same or connected cognizable offence
alleged to have been committed in the
course of the same transaction and in
respect of which pursuant to the first FIR
either investigation is under way or final
report under Section 173(2) has been
forwarded to the Magistrate, may be a fit
case for exercise of power under Section
482 Cr.PC or under Articles 226/227 of the
Constitution.

The abovereferred declaration of
law by this Court has never been diluted in
any subsequent judicial pronouncements
even while carving out exceptions."
290 INDIAN LAW REPORTS ALLAHABAD SERIES

(emphasis supplied by us)

17. The Court also referred to TT
Antony (Supra), Upkar Singh Vs. Ved
Prakash (Supra), Babubhai Vs. State of
Gujarat (Supra) as well as judgment
rendered in Chirra Shivraj Vs. State of
Andhra Pradesh reported in (2010) 14
SCC 444, and C. Muniappan Vs. State of
Tamilnadu reported in (2010) 9 SCC 567,
and the laying down of the "Consequence
test" i.e. if an offence forming part of the
second FIR arises as a consequence of the
offence alleged in the first FIR then the
offences covered by both the FIRs are the
same and, accordingly, the second FIR will
be impermissible in law. In other words,
the offences covered in both the FIRs shall
have to be treated as part of the first FIR.

18. We have gone through the alleged
first FIR regarding the same incident which
was lodged by one Dinesh Kumar Pandey,
the Station House Officer Incharge of
Police Station Kotwali Nagar, District
Bahraich i.e. F.I.R. No.0346 of 2024
lodged at 09:11 am on 15.10.2024 it relates
to the incident that occurred at 07:00 pm on
13.10.2024 when the idols of Devi Durga
were being taken for immersion after
conclusion of Navratri celebrations and the
said procession was attacked by members
of a particular community as a result
whereof one person was shot dead namely
Ram Gopal Mishra which resulted in heavy
stonepelting and communal disharmony.
The procession which was taking the idols
for immersion was stopped and some antisocial elements also incited the members of
the general public to abuse and assault
public servants /employees and prevent
them from carrying out their public duties.
The road was blockaded and stonepelting
continued unabated also attack was made
by Lathi/Danda near one T crossing by the
name of Peepal Tiraha and Steelganj
market. Reference was made to certain
persons belonging to the other community
whose names were also mentioned in the
said FIR, whose shops were attacked and
vandalized and one motorcycle was also set
on fire. This FIR talks of some anti-social
elements vandalizing public property as
well as private property of the other
community and creating an atmosphere of
social disharmony. Reference was made to
such unlawful activity being carried out in
several neighbourhoods names of which
have been given in the said FIR.

19. On the other hand, the F.I.R. that
was lodged on 18.10.2024 at 05:11 pm
registered as Case Crime No.0347 of 2024
by the Respondent no.4 under Sections
191(2), 191(3), 3(5), 109(1), 324(2),
351(3), 352 & 125 of the B.N.S. at Police
Station Kotwali Nagar, District Bahraich,
against seven named accused including the
petitioners herein has made mention of a
specific incident with regard to the dead
body of one Ram Gopal Mishra being kept
outside the gate of Bahraich Medical
College and the crowd raising slogans and
protesting the attempt being made by the
District Administration and the Police
Authorities as well as the CMO from taking
the body for autopsy to the Mortuary. The
seven named accused were part of a larger
group of persons and mention has been
made regarding the attempt being made by
informant who is a public representative in
trying to pacify the members of the crowd
and in trying to explain to them the
necessity of getting the post mortem done
of the deceased-victim and also help being
sought from the District Magistrate in this
regard. Despite attempt being made by the
District Magistrate and the sitting MLA to
pacify the crowd, and to take the body of
the deceased-victim to the Mortuary, the
10 All. Sukarmpal @ Amit Jat Vs. State of U.P. & Ors.
291
crowd
continued
stonepelting
which
resulted in the smashing of the wind screen
of one Car registration number of which
has been mentioned in the FIR and firing of
one gun shot in the air. This incident
happened in between 8:00 pm to 10:00 pm
at night on 13.10.2024 and the informant
has also referred to evidence being made
available in CCTV footage if it is examined
by the police during the investigation.

20. The initial FIR that was lodged on
15.10.2024 by the police official concerned
related to a general information regarding the
incident
which
happened
during
the
immersion procession of Devi Durga idols
where one person was shot as a result
whereof crowd got angry and destroyed the
shops of the other community through stonepelting and setting them on fire whereas the
FIR that was lodged on 18.10.2024 at 05:11
pm by the public representative, the sitting
MLA of Mahasi Constituency with regard to
the incident where the named accused
alongwith others were holding Dharna
Pradarshan with the body of the deceasedvictim
and
not
letting
the
District
Administration and the Police Authorities
from carrying out their public duties
regarding the autopsy of the deceased-victim
by taking his body to the mortuary for post
mortem examination. There was firing of gun
shot in the air also.

21. Prima facie, we do not find that the
second FIR which was lodged on 18.10.2024
and which has been challenged in these
petitions to be a part of the same transaction.
It is related to a subsequent development and
the Section of the B.N.S. invoked in the same
are not identical and do not relate to the same
incident or the same accused.

22. We, therefore, do not find any
good ground to show interference, as
prayed for, in these petitions, hence, they
are dismissed.
----------
(2024) 10 ILRA 291
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. Writ Petition No.11077 of 2024

Sukarmpal @ Amit Jat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Babu Lal Ram, Ramesh Kumar

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Gangster and Anti
Social Activities (Prevention) Act, 1986 -
Section 3(1) - U.P. Gangster and AntiSocial Activities (Prevention) Rules, 2021
- Rule 4(2) - Quashing of FIR - Impugned
FIR was registered u/s 3(1) of Gangster
Act without mentioning corresponding
provision of Section 2(b) of Gangster Act -
Base case was registered u/s 60,63 of
Excise Act and Sections 419, 420, 307,
467, 468, 471 IPC in which charge-sheet
was filed on 14.02.2020 and there was no
material to show that base case comes
within purview of Gangster Act, though
the same was punishable under Excise Act
and IPC and charge sheet was filed more
than three years back, therefore, bar of
proviso of Rule 4(2) was applicable and
petitioner couldn't be named as a
member of gang on basis of base case
mentioned in gang chart. (Para 20)
Court observed that if Gangster Act was
imposed against a person and chargesheet was filed then any subsequent
illegal activities falling within Sub-section