# Rahul Kumar Gaur @ Rahul Sharma v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-13
- **Case number:** Application u/s 482 No. 15206 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-kumar-gaur-rahul-sharma-v-state-of-u-p-anr-46020
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 154 -
Second FIR - Not Prohibited - two FIR
for same incident permissible if -
informants
are
different,
accused
persons are different, version of both
the FIR's is different - rival versions in
respect of the same incident do take
different shapes and in that event,
lodgment of two FIRs is permissible -
Prohibition
only
when
-
further
complaint by the same complainant
against the same accused subsequent
to the registration of the case under
the Code (Para 12, 13)

Applicant father lodged F.I.R. against the
son of opposite party no. 2 u/s 302 IPC for
causing death of his son Naresh Chand
(Applicant's brother) - I.O. submitted
charge sheet against son of opposite party
no. 2 - court took cognizance & framed
charges
-
opposite
party
no.2
filed
application u/s 156 (3) Cr.P.C. alleging
applicant killed his own brother Naresh
Chand - Magistrate directed for registration
of F.I.R. - I.O. submitted final report -
opposite party no.2 filed protest petition,
on which summoning order passed against
applicant - Summoning order challenged
inter alia on ground - FIR already lodged by
applicants with respect to the incident of
murder of Naresh Chand, therefore second
FIR at the instance of opposite party no.2
with respect to the same incident was not
maintainable - Held - Second FIR is a
counter FIR and is capable of taking note
of and tried on merits as per law - second
FIR was not filed by the same person, who
had filed the first FIR; it was filed as a
counter complaint; accused persons and
allegations different - No illegality in
summoning order (Para 3, 4, 8, 13)

Dismissed. (E-4)
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
415
List of Cases cited :-

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Therefore for the reasons stated
above, I have no hesitation in deleting the
following
observations
made
in
the
judgment and order dated 19.10.2019,
passed by the Sessions Judge, Hardoi in
Criminal Appeal No. 47/2019 - Yamoham
Singh Vs. State of U.P. :-

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ldrhA fo}ku eftLVsaV ls fu.kZ; ys[ku esa lq/kkj
visf{kr gSAß

17. The application is accordingly
allowed.
----------
(2021)01ILR A414
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application u/s 482 No. 15206 of 2020

Rahul Kumar Gaur @ Rahul Sharma
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Jitendra Singh, Sri Ashish Srivastava

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

Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 154 -
Second FIR - Not Prohibited - two FIR
for same incident permissible if -
informants
are
different,
accused
persons are different, version of both
the FIR's is different - rival versions in
respect of the same incident do take
different shapes and in that event,
lodgment of two FIRs is permissible -
Prohibition
only
when
-
further
complaint by the same complainant
against the same accused subsequent
to the registration of the case under
the Code (Para 12, 13)

Applicant father lodged F.I.R. against the
son of opposite party no. 2 u/s 302 IPC for
causing death of his son Naresh Chand
(Applicant's brother) - I.O. submitted
charge sheet against son of opposite party
no. 2 - court took cognizance & framed
charges
-
opposite
party
no.2
filed
application u/s 156 (3) Cr.P.C. alleging
applicant killed his own brother Naresh
Chand - Magistrate directed for registration
of F.I.R. - I.O. submitted final report -
opposite party no.2 filed protest petition,
on which summoning order passed against
applicant - Summoning order challenged
inter alia on ground - FIR already lodged by
applicants with respect to the incident of
murder of Naresh Chand, therefore second
FIR at the instance of opposite party no.2
with respect to the same incident was not
maintainable - Held - Second FIR is a
counter FIR and is capable of taking note
of and tried on merits as per law - second
FIR was not filed by the same person, who
had filed the first FIR; it was filed as a
counter complaint; accused persons and
allegations different - No illegality in
summoning order (Para 3, 4, 8, 13)

Dismissed. (E-4)
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
415
List of Cases cited :-

1. Surendra Kaushik & ors. Vs St. of U.P. &
ors. (2013) 5 SCC 148

2. P. Sreekumar Vs St. of Ker. AIR 2018
Supreme Court 1482

3. Sonu Gupta Vs Deepak Gupta (2015) 3
SCC 424

4. Harshendra Kumar Vs Rebatilata Koley &
ors. (2011) 3 SCC 351

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Jitendra Singh, learned
counsel for the applicant, learned A.G.A.
for the State and perused the material
available on record.

2. The present application under
Section 482 Cr.P.C. has been filed by the
applicant for quashing the order dated
1.2.2020 passed by the Additional Sessions
Judge, Court No. 11, Aligarh passed in
Criminal Revision No. 200 of 2018 (Rahul
Sharma Vs. State of U.P. and another) and
the summoning order dated 19.9.2016
under Sections 302/120B IPC as well as the
proceedings of Complaint Case No. 194/12
of 2015, New No. 16705 of 2016,
(Dharmveer Vs. Rahul and others) pending
before the Chief Judicial Magistrate,
Aligarh, District Aligarh.

3. Brief facts of the case as per the
petition are that on 19.10.2013 the
applicant and his brother, Naresh Chand
were coming to home on Motor Cycle.
They were assaulted by the son of opposite
party no.2 and his grandsons, causing
injury to them due to which Naresh Chand
died. The applicant's father lodged an F.I.R.
on 20.10.2013 registered as Case Crime
No. 1333 of 2013 under Sections 302,
120B IPC, Police Station Kwarsi, District
Aligarh.
The
investigating
officer
submitted the charge sheet against the son
of
opposite
party
no.2
and
his
granddaughter on 9.1.2014 where upon
Additional Session Judge, Court No.9,
Aligarh took cognizance and charges were
framed on 16.5.2015.

4.

The
opposite
party
no.2/complainant filed an application No.
684/11/2013
(Dharmveer
Vs.
Rahul
Sharma and others) under Section 156 (3)
Cr.P.C.
making
allegations
that
the
applicant with two other persons had killed
his own brother Naresh Chand and falsely
implicated the son of opposite party no.2,
and her granddaughter. The Chief Judicial
Magistrate directed for registration of the
F.I.R. vide order dated 25.1.2014 and in
pursuance thereof F.I.R. in Case Crime No.
1333A/2013 under Sections 302/120B IPC,
P.S. Kwarsi, District Aligarh was lodged on
31.1.2014.
The
Investigating
Officer
submitted final report dated 12.10.2014
against which the Complainant/opposite
party no.2 filed a protest petition, registered
as Case No. 194/12/2015, New No. 16705
of 2016, (Dharmveer Vs. Rahul and
others), on which summoning order dated
19.9.2016 was passed against the applicant.
The Criminal Revision No. 200 of 2016
(Sri Rahul Sharma Vs. State of U.P. and
another) filed against the summoning order
was rejected by the learned Additional
District and Sessions Judge, Court No.11,
Aligarh.

5. Learned counsel for the applicant
submits that the summoning order is bad
inasmuch as the Magistrate has not
weighed the evidence and has passed the
order without due application of judicial
mind. The second FIR was lodged as a
416 INDIAN LAW REPORTS ALLAHABAD SERIES
counter blast to the FIR lodged by the
applicant's father. His further submission is
that the allegations in the complaint are
false and concocted story has been set up.
In fact the son and grand daughter of the
complainant committed murder of Naresh
Chand and there was no motive for the
applicant to commit murder of Naresh
Chand. His further submission is that as the
FIR in case Crime No. 1333 of 2013 under
Sections 302, 120B IPC had already been
lodged by the present applicants with
respect to the incident of murder of Naresh
Chand, the FIR/protest-treated as complaint
case filed by the complainant opposite
party no.2 herein was not maintainable and
the Magistrate ought not to have taken
cognizance thereon and ought not to have
passed order of summoning. He submits
that the summoning order passed by the
Magistrate deserves to be quashed along
with the order passed in revision.

6. Learned A.G.A. submits that the
summoning order has been passed on
consideration of the material before the
Magistrate finding that the case for
summoning of the accused on the basis of
the said material was made out, prima
facie.
He
further
submits
that
the
complaint could be filed notwithstanding
the fact that the present applicant had
lodged the FIR earlier in point of time.
The complaint could not be said to be not
maintainable.
He
submits
that
the
summoning order and the order passed in
revision are perfectly legal and justified
and do not call for any interference by this
Court in the exercise of jurisdiction under
Section 482 Cr.P.C.

7. I have considered the submissions
as advanced by learned counsel for the
applicant, learned A.G.A. and perused the
material brought on record.

8. The submission of the learned
counsel for the applicant that once the FIR
was lodged by the applicant with respect to
the same incident in Case Crime No. 1333
of 2013 under Section 302 IPC, and the
cognizance has been taken, the second FIR
at the instance of opposite party no.2 with
respect to the same incident was not
maintainable, is legally not acceptable and
deserves rejection.

9. In Surendra Kaushik and others
Vs. State of U.P. and others, (2013) 5
SCC 148, the question was "whether after
registration of FIR and commencement of
the investigation, a second FIR relating to
the same incident on the basis of a direction
issued by the learned Magistrate under
Section 156(3) of the Code, could be
registered?", the Hon'ble Supreme Court
held that it is quite luminous that the
lodgment of two FIRs is not permissible in
respect of one and the same incident. The
concept of sameness has been given a
restricted meaning. It does not encompass
filing of a counter FIR relating to the same
or connected cognizable offence. What is
prohibited is any further complaint by the
same complainant and others against the
same accused subsequent to the registration
of the case under the Code, for an
investigation in that regard would have
already
commenced
and
allowing
registration of further complaint would
amount to an improvement of the facts
mentioned in the original complaint. The
prohibition does not cover the allegations
made by the accused in the first FIR
alleging a different version of the same
incident. Thus, rival versions in respect of
the same incident do take different shapes
and in that event, lodgment of two FIRs is
permissible.
It
is
apt
to
reproduce
paragraph Nos. 11 to 24 of Surendra
Kaushik (supra) as under:-
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
417

"11. If the primary requirement is
satisfied, an FIR is registered and the
criminal law is set in motion and the
officer-in-charge of the police station takes
up the investigation. The question that has
emerged for consideration in this case is
whether after registration of the FIR and
commencement of the investigation, a
second FIR relating to the same incident on
the basis of a direction issued by the
learned Magistrate under Section 156(3) of
the Code can be registered.

12. For apposite appreciation of
the issue raised, it is necessitous to refer to
certain authorities which would throw
significant light under what circumstances
entertainment of second FIR is prohibited.
In Ram Lal Narang (supra), this Court was
dealing with the facts and circumstances of
a case where two FIRs were lodged and
two charge- sheets were filed. The Bench
took note of the fact that the conspiracy
which was the subject-matter of the second
case could not be said to be identical with
the conspiracy which was the subject-
matter of the first one and further the
conspirators were different, although the
conspiracy which was the subject-matter of
the first case may, perhaps, be said to have
turned out to be a part of the conspiracy
which was the subject-matter of the second
case. After adverting to the various facets,
it has been opined that occasions may arise
when
a
second
investigation
started
independently of the first may disclose wide
range of offences including those covered
by the first investigation. Being of this view,
the Court did not find any flaw in the
investigation on the basis of the subsequent
FIR.

13. In T.T. Antony (supra), it was
canvassed on behalf of the accused that the
registration of fresh information in respect
of the very same incident as an FIR under
Section 154 of the Code was not valid and,
therefore, all steps taken pursuant thereto
including investigation were illegal and
liable to be quashed. The Bench, analyzing
the scheme of the provisions of Sections
154, 155, 156, 157, 162, 169, 170 and 170
of the Code, came to hold that only the
earliest or the first information in regard to
the commission of a cognizable offence
satisfies the requirements of Section 154 of
the Code and, therefore, 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. It was further
observed that: (T.T.Antony case, SCC p.
197 para 20)

"20...... 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 to 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 [of the Code].

14. It is worth noting that in the
said case, the two-Judge Bench explained
and distinguished the dictum in Ram Lal
Narang by opining that the Court had
indicated that the real question was
whether the two conspiracies were in truth
and substance the same and held that the
conspiracies in the two cases were not
identical. It further proceeded to state
that: (T.T. Antony case, SCC p 198, para
21)
418 INDIAN LAW REPORTS ALLAHABAD SERIES

"21........ the Court did not repel
the contention of the appellant regarding
the illegality of the second FIR and the
investigation based thereon being vitiated,
but on facts found that the two FIRs in truth
and substance were different [since] the
first was a smaller conspiracy and the
second was a larger conspiracy as it turned
out eventually.

15.
Thereafter,
the
Bench
explained thus: (T.T. Antony case, SCC p
198, para 21)

"21.........The
1973
Cr.O.C.
specifically
provides
for
further
investigation after forwarding of report
under sub-section (2) of Section 173 CrPC
and forwarding of further report or reports
to the Magistrate concerned under Section
173 (8) CrPC. It follows that if the
gravamen of the charges in the two FIRs --
the first and the second -- is in truth and
substance the same, registering the second
FIR and making fresh investigation and
forwarding report under Section 173
Cr.P.C. will be irregular and the court
cannot take cognizance of the same."

16. In Upkar Singh a three-Judge
Bench was addressing the issue pertaining
to the correctness of law laid down in the
case of T.T. Antony. The larger Bench took
note of the fact that a complaint was lodged
by the first respondent therein with Sikhera
Police Station in Village Fahimpur Kalan
at 10.00 a.m. on 20th May, 1995 making
certain allegations against the appellant
therein and some other persons. On the
basis of the said complaint, the police had
registered a crime under Sections 452 and
307 IPC. The appellant had lodged a
complaint in regard to the very same
incident against the respondents therein for
having committed offences punishable
under Sections 506 and 307 IPC as against
him and his family members. As the said
complaint was not entertained by the police
concerned,
he,
under
compelling
circumstances, filed a petition under
Section 156 (3) of the Code before the
Judicial Magistrate, who having found a
prima facie case, directed the concerned
police station concerned to register a crime
against the accused persons in the said
complaint and to investigate the same and
submit a report. On the basis of the said
direction, Crime No. 48-A of 1995 was
registered for offences punishable under
Sections 147, 148, 149 and 307 IPC.

17. Challenging the direction of the
Magistrate, a revision was preferred before
the learned Sessions Judge who set aside the
said direction. Being aggrieved by the order
passed by the learned Sessions Judge, a
Criminal Miscellaneous petition was filed
before the High Court of Judicature at
Allahabad and the High Court, following its
earlier decision in Ram Mohan Garg v. State
of U.P., dismissed the revision. While dealing
with the issue, this Court referred to para 18
of T.T. Antony and noted how the same had
been understood: (Upkar Singh case, SCC p.
296, para 11)

"11. This observation of the
Supreme Court in the said case of T.T.
Antony is understood by the learned
counsel for the respondents as the Code
prohibiting the filing of a second complaint
arising from the same incident. It is on that
basis and relying on the said judgment in
T.T. Antony case an argument is addressed
before us that once an FIR is registered on
the complaint of one party a second FIR in
the nature of a counter- case is not
registrable and no investigation based on
the said second complaint could be carried
out."
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
419

18. After so observing, the Court
held that the judgment in T.T. Antony really
does not lay down such a proposition of
law as has been understood by the learned
counsel for the respondent therein. The
Bench referred to the factual score of T.T.
Antony and explained thus: (Upkar Singh
case, SCC p. 297, para 16)

"16........Having carefully gone
through the above judgment, we do not
think that this Court in T.T. Antony v. State
of Kerla has precluded an aggrieved
person from filing a counter-case as in the
present case."

To arrive at such a conclusion,
the Bench in Upkar Singh case referred to
para 27 of the decision in T.T. Antony
wherein it has been stated that: Upkar
Singh case, SCC p. 297, para 16)

"16...... '27....... 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 [of the
Code] or under Articles 226/227 of the
Constitution.' (T.T. Antony case, SCC p.
200)" (emphasis in original)

Thereafter,
the
three-Judge
Bench ruled thus: (Upkar Singh case, SCC
pp. 297-98, para 17)

"17.........In our opinion, this
Court in that case only held that any
further complaint by the same complainant
or others against the same accused,
subsequent to the registration of a case, is
prohibited under the Code because an
investigation in this regard would have
already started and further 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 of the Code.
This prohibition noticed by this Court, in
our opinion, does not apply to countercomplaint by the accused in the first
complaint or on his behalf alleging a
different version of the said incident."

19. Be it noted, in the said verdict
in Upkar Singh case, reference was made
to Kari Choudhary v. Sita Devi wherein it
has been opined that (Upkar Singh case,
SCC p. 298, para 18)

"18.........'11....... there cannot be
two FIRs against the same accused in
respect of the same case. But when there
are rival versions in respect of the same
episode, they would normally take the
shape
of
two
different
FIRs
and
investigation can be carried [out] under
both of them by the same investigating
agency. (Kari Choudhary case, SCC p.
717, para 11)"

"11. Reference was made to the
pronouncement in State of Bihar v. J.A.C.
Saldanha wherein it has been highlighted
that the power of the Magistrate under
Section 156 (3) of the Code to direct
further
investigation
is
clearly
an
independent power and does not stand in
conflict with the power of the State
Government as spelt out under Section 3 of
the Police Act."

20. It is worth noting that the
Court also dealt with the view expressed in
420 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Lal Narang and stated thus: (Upkar
Singh case, SCC p. 299, para 22)

"22. A perusal of the judgment of
this Court in Ram Lal Narang v. State
(Delhi Admn.) also shows that even in
cases where a prior complaint is already
registered,
a
counter-complaint
is
permissible but it goes further and holds
that even in cases where a first complaint is
registered and investigation initiated, it is
possible to file a further complaint by the
same complainant based on the material
gathered during the course of investigation.
Of course, this larger proposition of law
laid down in Ram Lal Narang case is not
necessary to be relied on by us in the
present case. Suffice it to say that the
discussion in Ram Lal Narang case is in
the same line as found in the judgments in
Kari Choudhary and State of Bihar v.
J.A.C. Saldanha. However, it must be
noticed that in T.T. Antony case, Ram Lal
Narang case was noticed but the Court did
not express any opinion either way."

Explaining further, the Court in
Upkar Singh case observed (in para 23)
that if the law laid down by this Court in
T.T. Antony is to be accepted to have held
that a second complaint in regard to the
same incident filed as a counter complaint
is prohibited under the Code, such
conclusion
would
lead
to
serious
consequences inasmuch as the real accused
can take the first opportunity to lodge a
false complaint and get it registered by the
jurisdictional police and then that would
preclude the victim to lodge a complaint.

21. In Pandurang Chandrakant
Mhatre the Court referred to T.T. Antony
Ramesh Baburao Devaskar v. State of
Maharashtra and Vikram v. State of
Maharashtra and opined that the earliest
information in regard to the commission of
a cognizable offence is to be treated as the
first information report and it sets the
criminal
law
in
motion
and
the
investigation commences on that basis.
Although the first information report is not
expected to be an encyclopaedia of events,
yet an information to the police in order to
be first information report under Section
154(1) of the Code, must contain some
essential and relevant details of the
incident. A cryptic information about the
commission of a cognizable offence
irrespective of the nature and details of
such information may not be treated as first
information report. After so stating, the
Bench posed the question whether the
information regarding the incident therein
entered into general diary given by PW-5 is
the first information report within the
meaning of Section 154 of the Code and, if
so, it would be hit by Section 162 of the
Code. It is worth noting that analyzing the
facts, the Court opined that information
given to the police to rush to the place of
the incident to control the situation need
not necessarily amount to an FIR.

22. In Babubhai this Court (in
para 21), after surveying the earlier
decisions, expressed the view that 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 in the 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 two
different incidents/crimes, the second FIR
is permissible. In case the accused in the
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
421
first FIR comes forward with a different
version or counterclaim in respect of the
same incident, investigation on both the
FIRs has to be conducted.

23. It is worth noting that in
Babubhai case, the Court expressed the
view that the High Court had correctly
reached the conclusion that the second FIR
was liable to be quashed as in both the
FIRs, the allegations related to the same
incident that had occurred at the same
place in close proximity of time and,
therefore, they were two parts of the same
transaction.

24. From the aforesaid decisions,
it is quite luminous that the lodgment of
two FIRs is not permissible in respect of
one and the same incident. The concept of
sameness has been given a restricted
meaning. It does not encompass filing of a
counter FIR relating to the same or
connected cognizable offence. What is
prohibited is any further complaint by the
same complainant and others against the
same
accused
subsequent
to
the
registration of the case under the Code, for
an investigation in that regard would have
already
commenced
and
allowing
registration of further complaint would
amount to an improvement of the facts
mentioned in the original complaint. As is
further made clear by the three-Judge
Bench in Upkar Singh, the prohibition does
not cover the allegations made by the
accused in the first FIR alleging a different
version of the same incident. Thus, rival
versions in respect of the same incident do
take different shapes and in that event,
lodgment of two FIRs is permissible."

10. In the case of P. Sreekumar v.
State of Kerla AIR 2018 Supreme Court
1482 the Hon'ble Supreme Court has held
that there is no prohibition in law to file the
second FIR and once it is filed, such FIR is
capable of being taken note of and tried on
merits in accordance with law. It was for
the reasons interalia that the second FIR
was not filed by the same person, who had
filed the first FIR; it was filed as a counter
complaint; the number of accused persons
and the set of allegations were different.

11. It is apt to reproduce para Nos. 29
to 32 of P. Sreekumar (Supra) as under :-

"29)
Their
Lordships
after
examining all the previous case laws on the
subject laid down the following proposition
of law in the following words speaking
through Justice N. Santosh Hegde:

"23. Be that as it may, if the law
laid down by this Court in T.T. Antony case
is to be accepted as holding that a second
complaint in regard to the same incident
filed as a counter-complaint is prohibited
under the Code then, in our opinion, such
conclusion
would
lead
to
serious
consequences. This will be clear from the
hypothetical example given hereinbelow
i.e. if in regard to a crime committed by the
real accused he takes the first opportunity
to lodge a false complaint and the same is
registered by the jurisdictional police then
the aggrieved victim of such crime will be
precluded from lodging a complaint giving
his version of the incident in question,
consequently he will be deprived of his
legitimate right to bring the real accused to
book. This cannot be the purport of the
Code.

24. We have already noticed that
in T.T. Antony case this Court did not
consider the legal right of an aggrieved
person to file counterclaim, on the contrary
from the observations found in the said
422 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment it clearly indicates that filing a
counter-complaint is permissible.

25. In the instant case, it is seen
in regard to the incident which took place
on 20-5-1995, the appellant and the first
respondent herein have lodged separate
complaints giving different versions but
while the complaint of the respondent was
registered by the police concerned, the
complaint of the appellant was not so
registered, hence on his prayer the learned
Magistrate was justified in directing the
police concerned to register a case and
investigate the same and report back. In
our opinion, both the learned Additional
Sessions Judge and the High Court erred in
coming to the conclusion that the same is
hit by Section 161 or 162 of the Code
which, in our considered opinion, has
absolutely no bearing on the question
involved. Section 161 or 162 of the Code
does not refer to registration of a case, it
only speaks of a statement to be recorded
by the police in the course of the
investigation and its evidentiary value."

30) The aforesaid principle was
reiterated by this Court (Two Judge Bench)
in Surendra Kaushik and others v. State of
U.P. and others, (2013) 5 SCC 148: (AIR
2013 SC 3614) in the following words:

"24. From the aforesaid decisions,
it is quite luminous that the lodgment of two
FIRs is not permissible in respect of one and
the same incident. The concept of sameness
has been given a restricted meaning. It does
not encompass filing of a counter-FIR
relating to the same or connected cognizable
offence. What is prohibited is any further
complaint by the same complainant and
others against the same accused subsequent
to the registration of the case under the Code,
for an investigation in that regard would
have already commenced and allowing
registration of further complaint would
amount to an improvement of the facts
mentioned in the original complaint. As is
further made clear by the three-Judge Bench
in Upkar Singh, the prohibition does not
cover the allegations made by the accused in
the first FIR alleging a different version of
the same incident. Thus, rival versions in
respect of the same incident do take different
shapes and in that event, lodgment of two
FIRs is permissible."

31) Keeping the aforesaid principle
of law in mind when we examine the facts of
the case at hand, we find that the second FIR
filed by the appellant against respondent
No.3 though related to the same incident for
which the first FIR was filed by respondent
No.2 against the appellant, respondent No.3
and three Bank officials, yet the second FIR
being in the nature of a counter-complaint
against
respondent
No.3
was
legally
maintainable and could be entertained for
being tried on its merits.

32) In other words, there is no
prohibition in law to file the second FIR and
once it is filed, such FIR is capable of being
taken note of and tried on merits in
accordance with law."

12. From the aforesaid judgments of
Hon'ble the Supreme Court in Surendra
Kaushik (Supra) and P. Sreekumar
(Supra) it is very well settled that the
lodgement of two FIRs is not prohibited
in law. The concept of sameness has a
restricted
meaning
which
does
not
encompass filing of counter FIR relating
to the same or connected cognizable
offence. Rival versions in respect of the
same incident do take different shapes
and in that event lodgemet of two FIR's is
permissible.
1 All. Rahul Kumar Gaur @ Rahul Sharma Vs. State of U.P. & Anr.
423

13. In the case at hand in the two FIR
the accused persons are different. The
incident is same but the informants are
different. The version of both the FIR's is
different. The two FIRs are on different set
of facts. There is no legal bar as the
concept of sameness is not attracted. The
FIR is a counter FIR and is capable of
taking note of and tried on merits as per
law.

14. At the stage of summoning, the
Magistrate is required to apply his
judicial mind only with a view to find out
whether a prima facie case has been made
out for summoning the accused persons.
At this stage, the Magistrate is not
required to consider the defence version
or materials or arguments nor is he
required to evaluate the merits of the
materials or evidence of the complainant,
as has been laid down by Hon'ble the
Supreme Court in the case of R.R. Kapur
Vs. State of Panjab, reported in AIR 1960
SC 866 and State of Haryana Vs. Bhajan
Lal, reported in 1992 SCC 426. The
power under Section 482 Cr.P.C. is
exercised by the High Court only in
exceptional circumstances and only when
a prima facie case is not made out against
the
accused
persons.
The
disputed
defence of the accused cannot
be
considered at this stage.

15. In ''Sonu Gupta versus Deepak
Gupta', reported in (2015) 3 SCC 424,
the Hon'ble Supreme Court has held as
under in paragraph 8:-

"8......
At
the
stage
of
cognizance
and
summoning
the
Magistrate is required to apply his
judicial mind only with a view to take
cognizance of the offence or in other
words to find out whether a prima facie
case is made out for summoning the
accused persons. At this stage, the
learned Magistrate is not required to
consider the defence version or materials
or arguments nor is he required to
evaluate the merits of the materials or
evidence of the complainant, because the
Magistrate
must
not
undertake
the
exercise to find out at this stage whether
the materials would lead to conviction or
not."

16. From the perusal of record and
the summoning order it cannot be said
that no cognizable offence is made out
against the applicants on the basis of the
material available before the Magistrate
for summoning. The Magistrate was
satisfied that a prima-facie case for
summoning was made out and such
satisfaction is based on the material on
record. Learned counsel for the applicants
could not demonstrate as to how the
summoning order suffers from illegality
or perversity or improper exercise or any
case for summoning was not made out
even prima facie.

17. The submission of learned counsel
for the applicant that no such incident
occurred and the applicant has been falsely
implicated is a disputed question of fact
which cannot be determined in these
proceedings at this stage. It requires
evidence and can be ascertained only
during the trial. In Harshendra Kumar
versus Rebatilata Koley & others (2011) 3
SCC 351, the Hon'ble Supreme Court has
held that it is fairly well settled that while
exercising
inherent
jurisdiction
under
Section
482
Cr.P.C.
Or
revisional
jurisdiction under Section 397 of the Code
in a case where complaint is sought to be
quashed, it is not proper for the High Court
to consider the defence of the accused or
424 INDIAN LAW REPORTS ALLAHABAD SERIES
embark upon an enquiry in respect of the
accusations.

18. The order passed by the learned
Magistrate is in conformity with the settled
law. I do not find any illegality in the order
under challenge. The prayer for quashing
the
summoning
orders
and
further
proceedings of the complaint case is
refused.

19. This application under Section
482 Cr.P.C. is hereby dismissed.

20. No order as to costs.
----------
(2021)01ILR A424
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 37777 of 2019

Arvind Kumar & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ranjit Saxena

Counsel for the Opposite Parties:
A.G.A., Sri Daya Shanker Pandey

A. Criminal Law - Criminal Procedure
Code (2 of 1974)- Section 482 -
Quashing of charge-sheet - Offences
u/Ss.323, 504, 506, 376, 377 of Indian
Penal Code - Rape - allegation that the
accused committed rape upon the
victim forcibly against her wishes by
false promise to marry her Held - High
Court
cannot
embark
upon
the
appreciation of evidence produced by
the accused in his defence while
considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings - if perusal of the F.I.R.,
material collected by the I.O. makes out
a prima facie case against the accused -
Charge-sheet not liable to be quashed
(Para 26)

B.Criminal Law - Indian Penal Code (45
of 1860) - Section 376 - Rape -
Consensual sex - False promise to
marry Held - Accused did not rape
victim forcefully but he established
physical relations with her on the
promise to marry her but against her
wishes, which amounts to rape on the
principal of cheating and deception of
fact - offences of this nature involves
social defamation - there is always a
general tendency to suppress such
events at the initial stage in order to
avoid the lady being stigmatized -
offence committed by the applicant is
egregious in nature and speaks about
depravity of the applicants character,
who had no moral qualms in violating
modesty and honour of a lady due to
which she suffers mental agony &
social death (Para 14)

Dismissed. (E-4)

List of Cases cited :-

1. Thermax Ltd. & ors. Vs K.M. Johny &
ors. (2011) 11 SCC

2. Hem Raj Vs St. of Har. (2014) 4 SCC 395

3.Rishipal Singh Vs St. of U.P. (2014) 7 SCC
215

4. Subhash Kashinath Mahajan Vs The St.
of Mah. & ors. (2018) 6 SCC 454