# Raj Kumar & Ors v. State of U.P. & Ors - **Citation:** (2023) 5 ILRA 1079 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-04-13 - **Case number:** Criminal Misc. Writ Petition No. 12207 of 2022 - **Bench:** Anjani Kumar Mishra, Ms. Nand Prabha Shukla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-ors-v-state-of-u-p-ors-50080 - **Pages:** 3 ## Headnote Criminal Law - Indian Penal Code, 1860 - Sections 147, 148, 307, 308, 325, 395, 452, 506 & 120-B - Quashing of FIR - Second FIR - Maintainability - Application u/s 156(3) Cr.P.C. was moved by respondent no.3 before Magistrate - Report was sought from concerned police station regarding the incident - Police station forwarded the report, St.d that no FIR has been registered earlier - Relying on said report, the Magistrate directed for registration of impugned FIR - Held, in case, the correct information would have been furnished by police station, the impugned FIR would not have come into existence - As a second/subsequent FIR has been registered on the basis of wrong and misleading information forwarded by police station, therefore, it cannot be sustained and liable to be quashed. (Para 6) Writ Petitions Allowed. (E-13) List of Cases cited: T.T. Antony Vs St. of Kerala & ors.reported in (2002) 6 SCC 181 ## Text 5 All. Raj Kumar & Ors. Vs. State of U.P. & Ors. 1079 21. In view of the above, writ petitions are allowed. 22. Accordingly the impugned FIR dated 16.08.2020, registered as Case Crime No. 0326 of 2018, under Sections 409 IPC at Police Station Hari Parvat, District Agra, is quashed. ---------- (2023) 5 ILRA 1079 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.04.2023 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. THE HON'BLE MS. NAND PRABHA SHUKLA, J. Criminal Misc. Writ Petition No. 12207 of 2022 Raj Kumar & Ors. ...Petitioners Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioners: Sri Ashutosh Upadhyay Counsel for the Respondents: G.A., Sri Om Prakash Vishwakarma, Sri Vinod Kumar Yadav Criminal Law - Indian Penal Code, 1860 - Sections 147, 148, 307, 308, 325, 395, 452, 506 & 120-B - Quashing of FIR - Second FIR - Maintainability - Application u/s 156(3) Cr.P.C. was moved by respondent no.3 before Magistrate - Report was sought from concerned police station regarding the incident - Police station forwarded the report, St.d that no FIR has been registered earlier - Relying on said report, the Magistrate directed for registration of impugned FIR - Held, in case, the correct information would have been furnished by police station, the impugned FIR would not have come into existence - As a second/subsequent FIR has been registered on the basis of wrong and misleading information forwarded by police station, therefore, it cannot be sustained and liable to be quashed. (Para 6) Writ Petitions Allowed. (E-13) List of Cases cited: T.T. Antony Vs St. of Kerala & ors.reported in (2002) 6 SCC 181 (Delivered by Hon'ble Ms. Nand Prabha Shukla, J.) 1. Heard learned counsel for the petitioners, learned A.G.A. for the State and perused the record. 2. In the instant writ petition the petitioners seek to challenge the First Information Report dated 30.01.2022 arising out of Case Crime No. 0025 of 2022, under Sections 147, 148, 307, 308, 325, 395, 452, 506, 120-B IPC, Police Station-Sikrara, District-Jaunpur. 3. The main contention of learned counsel for the petitioners is that there are two FIRs registered for the same incident. Petitioners are named accused in the impugned FIR and are, therefore, aggrieved. 4. Per contra, learned A.G.A. for the State pointed out that for the same occurrence two FIRs have been registered; (i) the first FIR dated 22.08.2020, arising out of Case Crime No. 0170 of 2020, under Sections 323, 504, 506 IPC, Police Station Sikrara, District Jaunpur was lodged by Suraj Kumar (son of respondent no.3) against four persons (ii) another FIR dated 30.01.2022, arising out of Case Crime No. 0025 of 2022, under Sections 147, 148, 307, 308, 325, 395, 452, 506, 120B IPC, Police Station Sikrara, District Jaunpur was lodged by respondent no.3 against 14 named accused persons on the basis of an 1080 INDIAN LAW REPORTS ALLAHABAD SERIES application under Section 156(3) Cr.P.C. moved on 18.09.2020 by respondent No.3, wherein the Additional Chief Judicial Magistrate, Jaunpur directed vide order dated 10.01.2022 to the concerned police station to register the crime. 5. Upon having heard both the counsel for the parties as well as upon perusal of the record, it is admittedly true that for the same occurrence which took place on 21.08.2020, two separate FIRs have been registered. The first FIR was lodged by Suraj Kumar (son of the respondent no.3) under Sections 323, 504 and 506 IPC in which the investigation has been concluded and the charge sheet dated 04.09.2022 was filed in the Court against four named accused persons as well as against the petitioner no.1, Raj Kumar under Sections 323, 325, 504, 506, 147 and 188 IPC, thereafter, cognizance was taken on 13.06.2022. However, at the later stage on the directions of the concerned Circle Officer, a Supplementary charge sheet was filed on 07.12.2022 against petitioner nos.2 to 11, under Sections 147, 148, 308, 325, 324, 504 and 506 IPC and the name of the petitioner no.12 was exonerated. 6. From the perusal of the record, we find that after an application dated 18.09.2020, under Section 156(3) Cr.P.C. was moved by the respondent no.3 before the concerned Magistrate, a report was sought from the concerned police station regarding the incident. The concerned police station forwarded the report with a noting that, no FIR has been registered in the instant case. Considering this fact the concerned Magistrate, vide order dated 10.01.2022, directed the concerned police station to register the impugned FIR. Thus, relying on the said report, the concerned Magistrate directed for registration of the impugned FIR. In case, the correct information would have been furnished by the concerned police station the impugned FIR would not have come into existence. As a second/subsequent FIR has been registered on the basis of wrong and misleading information forwarded by the concerned police station, therefore, it cannot be sustained and is liable to be quashed. 7. It has been well settled by the Hon'ble Supreme Court in the case of T.T. Antony vs State of Kerala & Others reported in (2002) 6 SCC 181, that after registering the FIR and commencing investigation, registering the second FIR or successive FIR in respect of the same incident and crime and making of fresh investigation pursuant thereto would be irregular which calls for interference by the Court under Articles 226/227 of the Constitution of India or Section 482 Cr.P.C. and interference by the Supreme Court under Article 136 with a fresh investigation to prevent abuse of a statutory power of investigation or otherwise to secure the ends of justice. 8. After considering the aforesaid facts and circumstances and the settled position of law as laid down by the Hon'ble Supreme Court, the impugned FIR dated 30.01.2022, arising out of Case Crime No. 0025 of 2022 under Sections 147, 148, 307, 308, 325, 395, 452, 506, 120-B IPC, Police StationSikrara, District-Jaunpur is hereby quashed. 5 All. Sanjay Kumar Modi & Anr. Vs. Udairaj & Anr. 1081 9. The writ petition is allowed. ---------- (2023) 5 ILRA 1081 APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 29.05.2023 BEFORE THE HON'BLE JASPREET SINGH, J. First Appeal from Order No. 158 of 2023 alongwith First Appeal from Order No. 162 of 2023 Sanjay Kumar Modi & Anr. ...Appellants Versus Udairaj & Anr. ...Respondents Counsel for the Appellants: Satish Gulati, Sarvesh Kumar Tiwari, Sudeep Kumar Counsel for the Respondents: Shyam Mohan Pradhan, Brijesh Kumar A. Civil Law - Scope of remand - Code of Civil Procedure: Order 41 Rule 23 - The power of remand is not to be exercised casually or it cannot be a ground to merely shirk from the responsibility of deciding the matter on merits since the powers of the Lower Appellate Court u/s 96 C.P.C. is wide and akin to that of the Trial Court and in any case being the Court of first appeal, it is legally obliged to consider points of fact and law afresh. (Para 25) B. Unless and until, there was any handicap faced by the Appellate Court which fell within the parameters of Order41 Rule 23- A, till then in absence of any such cogent reason, the order of remand is not justified. (Para 14) In the present case, the Lower Appellate Court has not exercised the powers of remand in its correct perspective. The reasoning given by the Lower Appellate Court does not reflect conscious application of judicial principles as required to be applied before a remand order is passed. (Para 22) From the perusal of the impugned order, it only reveals that the Lower Appellate Court made reference to certain sections such as Ss. 52 and 53 of the Transfer of Property Act and Section 101 and 102 of the Indian Evidence Act, however, what the Lower Appellate Court has failed to notice as to how the aforesaid sections would create any handicap for the Appellate Court to have decided the matter. The parties have led their entire evidence and there is no reference made by the Lower Appellate Court that on any particular issue or on any particular aspect of the matter, the parties have not been able to lead evidence which was imperative which leads the Lower Appellate Court to remand the matter. This is to be kept in mind especially in context of the fact that the Court cannot permit the parties to fill up the lacunae in their case by passing an order of remand. (Para 23) If only the effect of the aforesaid legal provisions (provisions of Sections 52 and 53 of the Transfer of Property Act and Sections 102 and 103 of the Indian Evidence Act) were to be seen, then the Lower Appellate Court being the final court of fact and law was legally empowered and obliged to have considered the effect of the aforesaid sections on its own, without remanding the matter. (Para 24) Appeals allowed. (E-4) Precedent followed: 1. Shivkumar & ors. Vs Sharanabasappa & ors., (2021) 11 SCC 277 (Para 14) 2. Sanjay Kumar Vs Amar Nath Shukla, F.A.F.O. No. 431 of 2003, decided on 14.01.2020 (Para 20) 3. Jagannathan Vs Raju Sigamani & anr., (2012) 5 SCC page 540 (Para 20) 4. J. Balaji Singh Vs Diwaker Cole & ors., (2017) 14 SCC 207 (Para 20) Present F.A.F.O. assails the judgment and decree dated 11.04.2023, passed by the Lower Appellate Court whereby two civil appeals bearing No. 10 of 2022 and 11 of