# ANJU CHAUDHARY v. STATE OF U.P. & ANR

- **Citation:** [2012] 13 S.C.R. 901
- **Court:** Supreme Court of India
- **Decided:** 2012-12-13
- **Case number:** Criminal Appeal No. 2039 of 2012
- **Bench:** Swatanter Kumar, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anju-chaudhary-v-state-of-u-p-anr-28182
- **Pages:** 48

## Headnote

Code of Criminal Procedure, 1973:
A
B
s. 154 - FIR - Whether it is permissible to register two c
different FIRs in law - Held: There cannot be two FIRs
registered for the same offence - However, where the incident
is separate; offences are similar or different, or even where
the subsequent crime is of such magnitude that it does not
fall within the ambit and scope of the FIR recorded first, then 0
a second FIR could be registered - 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 - This will always be a E
mixed question of law and facts depending upon the merits
of a given case - The Court in order to examine the impact
of one or more FIRs has to rationalise the facts and
circumstances of each case and then apply the test of
'sameness' to find out whether both FIRs relate to the same
incident and to the same occurrence, are in regard to incidents
F
which are two or more parts of the same transaction or relate
completely to two distinct occurrences - If the answer falls in
the first category, the second FIR may be liable to be quashed
- However, in case the contrary is proved, whether the version
of the second FIR is different and they are in respect of two G
different incidents/crimes, the second FIR is permissible.
s.154 - FIR - Whether an accused entitled to hearing preregistration of an FIR - Held: The scheme of CrPC does not
901
H
902
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A provide for any right of hearing at the time of registration of
the FIR - The very purpose of fair and just investigation shall
stand frustrated if pre-registration hearing is required to be
granted to a suspect - There would be the pre-dominant
possibility of a suspect escaping the process of law - The
s entire scheme of CrPC supports the theory of exclusion of
audi alteram partem pre-registration of an FIR.
ss. 154 and 220 - Common trial or a common FIR for one
series of acts so connected together as to form the same
transaction - Expression "same transaction" - Meaning of -
C
Held: It is not possible to enunciate any formula of universal
application for purpose of determining whether two or more
acts constitute the same transaction - Such things to be
gathered from the circumstances of a given case indicating
proximity of time, unity or proximity of place, continuity of
D action, commonality of purpose or design.
s. 156(3) - Power of the Magistrate under - Discussed.
In the present appeal, the appellant challenged the
legality and correctness of the order of the High Court
E inter alia on the grounds: (i) that in law, there cannot be
two FIRs registered in relation to the same occurrence or
different events or incidents two or more but forming part
of the same transaction and thus on facts, the direction
to register a second FIR, was contrary to law and the very
F
spirit of Section 154 of the Code; (ii) that the order of the
High Court was in violation of the principles of natural
justice inasmuch as the High Court neither gave any
notice nor heard the appellant before passing the
impugned order and (iii) that the High Court while virtually
G directing the Magistrate to get an FIR registered,
foreclosed the exercise of judicial discretion by the
Magistrate and as such, the order of the High Court was
not sustainable.
H
Per contra, on behalf of the State as well as
ANJU CHAUDHARY v. STATE OF U.P.
903
respondent no.2 it was inter alia contended that there A
were no two separate FIRs in relation to the same offence
or occurrence, but these FIRs related to two different
incidents which was permissible in law and that the
appellant was not entitled to any hearing in law at the
stage of filing the FIR.
B
Dismissing the appeal, the Court
HELD:
Whether it is permissible to register two different FIRs in c
law
1.1. On the plain construction of the language and
sch

## Text

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[2012] 13 S.C.R. 901
ANJU CHAUDHARY
v.
STATE OF U.P. & ANR.
(Criminal Appeal No. 2039 of 2012)
DECEMBER 13, 2012
[SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]
Code of Criminal Procedure, 1973:
A
B
s. 154 - FIR - Whether it is permissible to register two c
different FIRs in law - Held: There cannot be two FIRs
registered for the same offence - However, where the incident
is separate; offences are similar or different, or even where
the subsequent crime is of such magnitude that it does not
fall within the ambit and scope of the FIR recorded first, then 0
a second FIR could be registered - 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 - This will always be a E
mixed question of law and facts depending upon the merits
of a given case - The Court in order to examine the impact
of one or more FIRs has to rationalise the facts and
circumstances of each case and then apply the test of
'sameness' to find out whether both FIRs relate to the same
incident and to the same occurrence, are in regard to incidents
F
which are two or more parts of the same transaction or relate
completely to two distinct occurrences - If the answer falls in
the first category, the second FIR may be liable to be quashed
- However, in case the contrary is proved, whether the version
of the second FIR is different and they are in respect of two G
different incidents/crimes, the second FIR is permissible.
s.154 - FIR - Whether an accused entitled to hearing preregistration of an FIR - Held: The scheme of CrPC does not
901
H
902
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A provide for any right of hearing at the time of registration of
the FIR - The very purpose of fair and just investigation shall
stand frustrated if pre-registration hearing is required to be
granted to a suspect - There would be the pre-dominant
possibility of a suspect escaping the process of law - The
s entire scheme of CrPC supports the theory of exclusion of
audi alteram partem pre-registration of an FIR.
ss. 154 and 220 - Common trial or a common FIR for one
series of acts so connected together as to form the same
transaction - Expression "same transaction" - Meaning of -
C
Held: It is not possible to enunciate any formula of universal
application for purpose of determining whether two or more
acts constitute the same transaction - Such things to be
gathered from the circumstances of a given case indicating
proximity of time, unity or proximity of place, continuity of
D action, commonality of purpose or design.
s. 156(3) - Power of the Magistrate under - Discussed.
In the present appeal, the appellant challenged the
legality and correctness of the order of the High Court
E inter alia on the grounds: (i) that in law, there cannot be
two FIRs registered in relation to the same occurrence or
different events or incidents two or more but forming part
of the same transaction and thus on facts, the direction
to register a second FIR, was contrary to law and the very
F
spirit of Section 154 of the Code; (ii) that the order of the
High Court was in violation of the principles of natural
justice inasmuch as the High Court neither gave any
notice nor heard the appellant before passing the
impugned order and (iii) that the High Court while virtually
G directing the Magistrate to get an FIR registered,
foreclosed the exercise of judicial discretion by the
Magistrate and as such, the order of the High Court was
not sustainable.
H
Per contra, on behalf of the State as well as
ANJU CHAUDHARY v. STATE OF U.P.
903
respondent no.2 it was inter alia contended that there A
were no two separate FIRs in relation to the same offence
or occurrence, but these FIRs related to two different
incidents which was permissible in law and that the
appellant was not entitled to any hearing in law at the
stage of filing the FIR.
B
Dismissing the appeal, the Court
HELD:
Whether it is permissible to register two different FIRs in c
law
1.1. On the plain construction of the language and
scheme of Sections 154, 156 and 190 of the Code of
Criminal Procedure, it cannot be construed or suggested
that there can be more than one FIR about an occurrence. D
However, the opening words of Section 154 suggest that
every information relating to commission of a cognizable
offence shall be reduced to writing by the officer in-charge
of a Police Station. This implies that there has to be the
first information report about an incident which constitutes
E
a cognizable offence. The purpose of registering an FIR
is to set the machinery of criminal investigation into
motion, which culminates with filing of the police report
in terms of Section 173(2) of the Code. It will, thus, be
appropriate to follow the settled principle that there cannot
F
be two FIRs registered for the same offence. However,
where the incident is separate; offences are similar or
different, or even where the subsequent crime is of such
magnitude that it does not fall within the ambit and scope
of the FIR recorded first, then a second FIR could be G
registered. [Para 15] [925-C-F]
1.2. The filing of report upon completion of
investigation, either for cancellation or alleging
commission of an offence, is a matter which once filed
H
904
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A before the court of competent jurisdiction attains a kind
of finality as far as police is concerned, may be in a given
case, subject to the right of further investigation but
wherever the investigation has been completed and a
person is found to be prima facie guilty of committing an
8
offence or otherwise, re-examination by the investigating
agency on its own should not be permitted merely by
registering another FIR with regard to the same offence.
If such protection is not given to a suspect, then
possibility of abuse of investigating powers by the Police
C cannot be ruled out. It is with this intention in mind that
such interpretation should be given to Section 154 of the
Code, as it would not only further the object of law but
even that of just and fair investigation. [Para 15] [925-H;
926-A-C]
D
1.3. 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
E appropriate for the Court to lay down one straightjacket
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. [Para 16] [926-F-G]
F
1.4. The possibility that more than one piece of
information is given to the police officer in charge of a
police station, in respect of the same incident involving
one or more than one cognizable offences, cannot be
ruled out. The Court in order to examine the impact of
one or more FIRs has to rationalise the facts and
G circumstances of each case and then apply the test of
'sameness' to find out whether both FIRs relate to the
same incident and to the same occurrence, are in regard
to incidents which are two or more parts of the same
transaction or relate completely to two distinct
H
ANJU CHAUDHARY v. STATE OF U.P.
905
occurrences. If the answer falls in the first category, the A
second FIR may be liable to be quashed.
However, in
case the contrary is proved, whether the version of the
second FIR is different and they are in respect of two
different incidents/crimes, the second FIR is permissible.
[Para 23) [936-E-H]
B
1.5. In the case at hand, even the offences which are
stated to have been committed, and for which the two
FIRs were registered were different and distinct. There
were two different FIRs relatable to different occurrences, C
investigation of one was no way dependent upon the
other and they are neither inter-linked nor interdependent. They were lodged by different persons in
relation to occurrences which are alleged to have
occurred at different points of time against different
people and for different offences. Requirement of proof D
in both cases was completely distinct and different.
Thus, there was no similarity and the test of similarity
would not be satisfied in the present case.
Thus,
lodging of the subsequent FIR was not a second FIR for
the same occurrence, and thus, could be treated as a E
First Information Report for all purposes including
investigation in terms of the provisions of the Code.
It
was not in the form of a statement under Section 162 of
the Code. [Para 28] [938-F-G; 939-A-C]
Rita Nag v. State of West Bengal (2009) 9 SCC 129:
2009 (13) SCR 276; Vinay Tyagi v. lrshad Ali @ Deepak &
Ors. SLP (Crl) No.9185-9186 of 2009; Ram Lal Narang v.
State (Delhi Administration) (1979) 2 SCC 322; M. Krishna
F
v. State of Kamataka (1999) 3 SCC 247: 1999 (1) SCR 780; G
T. T. Antony v. State of Kera/a (2001) 6 SCC 181: 2001 ( 3 )
SCR 942; Upkar Singh v. Ved Prakash (2004) 13 SCC 292;
Rameshchandra Nandla/ Parikh v. State of Gujarat (2006) 1
SCC 732; Vikram v. State of Maharashtra (2007) 12 SCC
332: 2007 (6) SCR 185; Tapinder Singh v. State of Punjab
H
906
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A (1970) 2 SCC 113: 1971 ( 1 ) SCR 599; Shiv Shankar Singh
v. State of Bihar (2012) 1 SCC 130: 2011 (13) SCR 247;
Babu Babubhai v. State of Gujarat and Ors. (2010) 12 SCC
254: 2010 (10 ) SCR 651 and Chirra Shivraj v. State of
Andhra Pradesh (2010) 14 SCC 444: 2010 (15) SCR 673 -
B referred to.
Is an accused entitled to hearing pre-registration of an
FIR?
2.1. The scheme of the Criminal Procedure Code
C does not provide for any right of hearing at the time of
registration of the First Information Report. The
registration forthwith of a cognizable offence is the
statutory duty of a police officer in charge of the police
station. The very purpose of fair and just investigation
D shall stand frustrated if pre-registration hearing is
required to be granted to a suspect. It is not that the
liberty of an individual is being taken away or is being
adversely affected, except by the due process of law.
Where the Officer In-charge of a police station is informed
E of a heinous or cognizable offence, it will completely
destroy the purpose of proper and fair investigation if the
suspect is required to be granted a hearing at that stage
and is not subjected to custody in accordance with law.
There would be the pre-dominant possibility of a suspect
F escaping the process of law. The entire scheme of the
Code unambiguously supports the theory of exclusion
of audi alteram partem pre-registration of an FIR. [Para
30] [940-D-G]
2.2. It is clear that the law does not contemplate grant
G of any personal hearing to a suspect who attains the
status of an accused only when a case is registered for
committing a particular offence or the report under
Section 173 of the Code is filed terming the suspect an
accused that his rights are affected in terms of the Code.
H Absence of specific provision requiring grant of hearing
ANJU CHAUDHARY v. STATE OF U.P.
907
to a suspect and the fact that the very purpose and A
object of fair investigation is bound to be adversely
affected if hearing is insisted upon at that stage, clearly
supports the view that hearing is not any right of any
suspect at that stage. [Para 32) [942-B-D]
2.3. Even in the cases where report under Section
B
173(2) of the Code is filed in the Court and investigation
records the name of a person in column (2), or even does
not name the person as an accused at all, the Court in
exercise of its powers vested under Section 319 can C
summon the person as an accused and even at that stage
of summoning, no hearing is contemplated under the law.
[Para 33) [942-E]
2.4. The situation, however, will be different where the
complaint or an application is directed against a D
particular person for specific offence and the Court under
Section 156 dismisses such an application. In that case,
the higher court may have to grant hearing to the suspect
before it directs registration of a case against the suspect
for a specific offence. [Para 34) [942-F-G]
E
State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR
1964 SC 221: 1964 SCR 71; Union of India v. WN. Chadha
(1993) Suppl. (4) SCC 260: 1992 (3) Suppl. SCR 594 and
Samaj Parivartan Samuday v. State of Kamataka (2012) 7
F
sec 407 - referred to.
Power of the Magistrate under Section 156(3) CrPC
3.1. While dealing with the application or passing an
order under Section 156(3), the Magistrate does not take G
cognizance of an offence. When the Magistrate had
applied his mind only for order an investigation under
Section 156(3) of the Code or issued a warrant for the
said purpose, he is not said to have taken cognizance.
It is an order in the nature of a pre-emptory reminder or H
908
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A intimation to the police to exercise its primary duty and
power of investigation in terms of Section 151 of the
Code. Such an investigation embraces the continuity of
the process which begins with collection of evidence
under Section 156 and ends with the final report either
B under Section 159 or submission of chargesheet under
Section 173 of the Code. [Para 35] [944-D-F]
3.2. The Magistrate exercises a very limited power
under Section 156(3) and so is its discretion. It does not
travel into the arena of merit of the case if such case was
C fit to proceed further. This distinction has to be kept in
mind by the court in different kinds of cases. In the
present case, the Magistrate had not dealt with the case
on merits, but on a legal assumption that it was not a
case to direct investigation because investigation was
D already going on under an earlier FIR.
There was thus
no error of jurisdiction in the order of the High Court
requiring the Magistrate to deal with the cases afresh and
pass an order under Section 156(3) of the Code. [Para 38]
E
[946-G-H; 947-A-B]
Mona Pawar v. High Court of Allahabad (2011) 3 SCC
496: 2011 (2) SCR 413;
Dilawar Singh v. State of Delhi
(2007) 9 SCR 695; Tula Ram & Ors. v. Kishore Singh (1977)
4 SCC 459: 1978 (1) SCR 615; Rameshbhai Pandurao
F
Hedau v. State of Gujarat (2010) 4 SCC 185: 2010 (3) SCR
522 and Srinivas Gundluri & Ors. v. SEPCO Electric Power
Construction Corporation & Ors. (2010) 8 SCC 206: 2010 (9)
SCR 278 - referred to.
4.1. It is true that law recognizes common trial or a
G common FIR being registered for one series of acts so
connected together as to form the same transaction as
contemplated under Section 220 of the Code. There
cannot be any straight jacket formula, but this question
has to be answered on the facts of each case. The
H expression 'same transaction' from its very nature is
ANJU CHAUDHARY v. STATE OF U.P.
909
incapable of exact definition. It is not intended to be A
interpreted in any artificial or technical sense.
Common
sense in the ordinary use of language must decide
whether or not in the very facts of a case, it can be held
to be one transaction. [Para 40] [947-D-F]
4.2. It is not possible to enunciate any formula of B
universal application for the purpose of determining
whether two or more acts constitute the same
transaction.
Such things are to be gathered from the
circumstances of a giv1rn case indicating proximity of
time, unity or proximity of place, continuity of action, C
commonality of purpose or design. Where two incidents
are of different times with involvement of different
persons, there is no commonality and the purpose
thereof different and they emerge from different
circumstances, it will not be possible for the Court to take D
a view that they form part of the same transaction and
therefore, there could be a common FIR or subsequent
FIR could not be permitted to be registered or there could
be common trial. [Para 41] [947-G-H; 948-A]
E
4.3. Similarly, for several offences to be part of the
same transaction, the test which has to be applied is
whether they are so related to one another in point of
purpose or of cause and effect, or as principal and
subsidiary, so as to result in one continuous action. F
Thus, where there is a commonality of purpose or
design, where there is a continuity of action, then all
those persons involved can be accused of the same or
different offences "committed in the course of the same
transaction". [Para 42] [948-8-C]
Mohan Baitha v. State of Bihar (2001) 4 SCC 350 -
referred to.
G
H
910
SUPREME COURT REPORTS
[2012) 13 S.C.R.
Case Law Reference:
2009 (13) SCR 276
referred to
Para 15
(1979) 2 sec 322
referred to
Para 16, 18
B
1999 (1) SCR 780
referred to
Para 17, 18
2001 (3) SCR 942
referred to
Para 18, 19
(2004) 13 sec 292
referred to
Para 19
c
c2006) 1 sec 132
referred to
Para 20
2007 (6) SCR 185
referred to
Para 21
1971 (1) SCR 599
referred to
Para 21
2011 (13) SCR 247
referred to
Para 21
D
2010 (10 ) SCR 651
referred to
Para 22
2010 (15) SCR 673
referred to
Para 23
1964 SCR 71
referred to
Para 29
E
1992 (3) Suppl. SCR 594 referred to
Para 30
(2012) 1 sec 407
referred to
Para 31
2011 (2) SCR 413
referred to
Para 35
F
(2007) 9 SCR 695
referred to
Para 35
1978 (1) SCR 615
referred to
Para 36
2010 (3) SCR 522
referred to
Para 37
""
.;J
2010 (9) SCR 278
referred to
Para 37
(2001 > 4 sec 350
referred to
Para 40
CRIMINAL APPELLATE JURISDCTION : Criminal Appeal
H
No. 2039 of 2012.
ANJU CHAUDHARY v. STATE OF U.P.
911
From the Judgment and Order dated 26.09.2008 of the
A
High Court of Judicature at Allahabad in CRLR No. 2346 of
2008.
Ravindra Shrivastava, lrshad Ahmad, AAG, Siddharth
Dave, Kaushik Poddar, Abhinav Shrivastava, Anshuman
8
Shrivastava, Suvigya Awasthy, M.R. Shamshad, Aparna Bhat,
Pukhrambam Ramesh Kumar for the appearing parties.
The Judgment 'Of the Court was delivered by
SWATANTER KUMAR, J. 1. Leave granted.
2. A cardinal question of public importance and one that
is likely to arise more often than not in relation to the lodging
c
, of the First Information Report (FIR) with the aid of Section
156(3) of the Code of Criminal Procedure (for short, 'the Code')
or otherwise independently within the ambit of Section 154 of D
the Code is as to whether there can be more than one FIR in
relation to the same incident or different incidents arising from
the same occurrence.
3. The above question arises from the factual matrix which,
E
shorn of the unnecessary details, can be stated as follows:
4. On 16th November, 2007, one Parvez Parwaz,
Respondent No.2, claiming himself to be a social activist filed
an application under Section 156(3) in the Court of the Chief
F
Judicial Magistrate, Gorakhpur. According to this complaint,
one Mahant Aditya Nath Yogi, Member of Parliament and leader
of an unregistered organization called the Hindu Yuva Vahini
had been spreading hatred amongst Hindus and Muslims for
a number of years and has also been causing fear amongst
the Muslim community and harming them, demolishing the G
properties of Muslims and carrying out other acts of
harassment.
On 27th January, 2007 when the complainant,
Respondent No.2 herein, was returning home from the Railway
Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath,
H
912
SUPREME COURT REPORTS
(2012] 13 S.C.R.
A
Member of Parliament, Dr. Radha Mohan Dass Aggarwal,
Member of the Legislative Assembly, Dr. Y. D. Singh, Member
of the Legislative Council and Anju Chowdhary, Mayor of
Gorakhpur, the Minister of State and BJP Leader Shiv Pratap
Shukla, other office bearers and thousands of activists of Hindu
B
Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as
various other persons whom the petitioner does not know by
name but can recognise, were holding a meeting as "Warning
Meeting". The meeting which was addressed by Yogi Aditya
Nath who was saying that if blood of one Hindu be shed then
c they will not register any FIR with the administration against
the bloodshed of one Hindu in the times to come, instead they
will get ten persons (Muslims) killed. If damage is done to the
shops and properties of Hindus, they would indulge in similar
activities towards the Muslims. Anything can be done to save
D the glory of Hindus and all should prepare for a fight. Amongst
others, it was also stated in the complaint as under:
"He stated that we will not allow lifting of Tazia anywhere
in the Gorakhpur City and the Gorakhpur District and we
will also celebrate our Holi with these Tazias. He stated that
E
we will have to take harsh steps for the welfare of Hindus
and we do not want that the generations to come
remember us with bad names. He stated that I do not
understand that we will be ready to take up those names,
therefore, be ready to fight your final battle. Member of
F
Parliament Yogi Aditya Nath stated that once you stand up
then you see that Gorakhpur will remain peaceful for many
years. If the administration does not take revenge of the
murder of the Trader's son, then we will take ourselves, we
will ourselves take revenge of that murder. Member of
G
Parliament Yogi Aditya Nath, in his speech, termed the
administration as worthless and eunuch and the incidents
as Government sponsored terrorism and challenging the
democratic Government he stated that they will destroy the
law and order and will take law in their own hands. He also
H
called for bandh of Gorakhpur and Basti Divisions and
ANJU CHAUDHARY v. STATE OF U.P.
913
[SWATANTER KUMAR, J.]
directed the activists to inform about this to every place A
through every media. Thereafter, Member of Parliament
Yogi Aditya Nath led a torch procession and hundreds of
activists along with abovenamed persons participated and
raised slogans in support of Yogi Aditya Nath. In this
procession, the slogan related to spreading of hatred
B
against Muslims and sentiments of killing and harming
them was being raised with primary importance, which was
pronounced as "Katuye Kaate Jayenge, Ram - Ram
Chillanyenge". The petitioner got afraid very much by the
above incident and keeping in view the danger to his life, c
went to the house of a relative. The petitioner saw at many
places in the way that these elements raising exciting
slogans behaved improperly by passing humiliating
comments on Burqa - clad women and beared Muslim
passers by and beat them and fired several rounds in the 0
air. All these incidents including the public meeting and
torch procession was witnessed by a number of people
apart from me, who I know by name and address, but I do
not deem it proper to reveal their names in the present
situation due to reason of insecurity.
E
5. That after the night of 26th January, 2007, due to highly
sensitive condition prevailing in the town Gorakhpur, curfew
was imposed on three Police Station areas of the
Gorakhpur town and Section 144 was in force in entire
Gorakhpur city area including the places of public meeting
F
and the torch procession. Despite this, the aforesaid
unconstitutional meeting and torch procession was
organized and conducted openly violating the Section 144
in presence Police Officers and the public was provoked
and directed to perform criminal acts by the activists G
present there and the activists of other places were
provoked through them. Aditya Nath Yogi provoked Hindus
to kill Muslims and rob and set afire their houses and
shops and to destruct their religious places and Tazias for
the reason of the murder of Raj Kumar Agrahari (incident
H
A
8
c
D
E
F
G
H
914
SUPREME COURT REPORTS
[2012] 13 S.C.R.
of 26/27th January, 2007 Gorakhpur Town) and the alleged
incidents happending since 24th January, 2007 and also
provoked Muslims to not to celebrate Muharram which was
a conspiracy hatched by him on the basis of his maligned
thought and to fulfil which, he was looking for an
appropriate situation. Under this very conspiracy, criminal
incidents were carried out in the Gorakhpur and Basti
Divisions, which caused disruption of Law and Order.
6. That as a result of the speech given by Yogi Aditya Nath
in the public meeting on 27th January, 2007, torch
procession and conspiracy hatched by abovenamed
persons present with him, the shops, houses, godowns
and vehicles of Muslims were robbed and set afire in
Gorakhpur Police Station Areas in Gorakhpur Town by the
Yogi supported Hiridu Yuva Vahini, activists of BJP, Vyapar
Mandal, which created an atmosphere of fear and terror.
Gorakhnath temple became main centre of communal
miscreant activities of the followers of this Yogi Aditya Nath
and their refuge and these miscreants attacked the houses
of Muslims residing in the area adjoining the temple
premises, their shops and godowns and the vehicles of
Muslims standing there (Trucks, Rickshaw, Scooters,
Cars, etc.) and set them afire which caused which loss.
Under the criminal conspiracy and instigation of Member
of Parliament Yogi and the abovenamed persons, the
followers of Yogi Aditya Nath killed Rashid RIO Sahabgunj
S/O Rasheed R/O Rahmat Nagar, P.S. Rajghat in the
Rajghat Police Station area and such followers also tried
to kill by setting afire by pouring petrol on Peshimam Tufail
Ahmad S/O Munnavar Hussain R/O Singharia in Cantt.
Police Station area and such followers also caused huge
loss by destructing Mosque situated at Menhadia village
under Police Station Gagaha and such followers also set
afire the religious epic Kuran in the Mosque of Village
Etkhauli and caused loss by destructing the Mosque under
the Police Station Gagaha and such followers also set afire
ANJU CHAUDHARY v. STATE OF U.P.
915
[SWATANTER KUMAR, J.]
the madarsa situated in village Vasudiha under Police A
Station Gagaha and also set afire Tazias and such
followers also set afire the shops of Abdulla S/O of
Sharfuddin, Shahur, Riyaz all Muslims at Bhaluan
Chouraha under Police Station Gagaha and the shops of
Muslims named Fakharuddin and Islam were also set afire
B
apart from lrshad Tent House at Jaitpur Couraha under
Sahajnawan Police Station and such followers also
destructed and destroyed the Eidgaah situated in village
Rudlapur P.S. Khorabar and Eidgaah situated in village
Dumri (Niwas) P.S. Sahajanawan, and Eidgaah situated c
in village Mustafabad@ Mallaur P.S. Sahjanawan and the
Mosque situated in village Bhhopgarh P.S. Gola District
Gorakhpur. Tazias were not allowed to be lifted at many
places in Gorakhpur district and at many places where the
Tazia procession were carried out, they were destructed D
and set afire there by doing miscreant acts there. The
shops of Salim S/O Shaukat in village Jaddupatti, Ashiq
Band, Anwar barber, Hafizullah and Jabbar in village
Menhdeva under Police Station Sikrigunj were also set
afire under the same conspiracy. These miscreants also
E
robbed and set afire the shop of Tajammul Hussain in
village Dhabra of Police Station Sikrigunj. In the same
way, the shops of Nadir, Ashiq Mukhtar were robbed and
set afire in Belghat and such miscreants also attacked the
mosque situated in village Bhainsa P.S. Bansgaon and
destroyed it's gate and also destructed shops of two
F
Muslims in the market.
7. That the followers of Aditya Nath Yogi and activists -
miscreants of the abovenamed organization robbed and
set afire the buses of the roadways by blocking the roads G
and the government and private other vehicles were also
robbed and set afir4e. The conduction of roadways buses
in Gorakhpur and Basti Division remained effected during
the period from 29.01.2007 to 5th February, 2007 and
other adjoining Division also remained effected. During
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[2012) 13 S.C.R.
the period from 9th January to 31st January, 2007, the
followers and activists of Yogi Aditya Nath destroyed more
than 22 buses of the roadways on different places under
this conspiracy and also caused loss by setting them afire,
in which 14 roadways buses belonged to Gorakhpur areas
and 8 buses belonged to outer areas. On date 31st
January, 2007 road buses in the Nichnaul depot in
Maharajgunj district were also destructed and set afire by
the followers of Yogi Aditya Nath.
8. That Railways was disrupted by the followers of Yogi
Aditya Nath Hindu Yuva Vahini, BJP and Vyapar Mandal
and about more than 14 trains were set afire causing loss
and the Yogi supported miscreants of these organizations
pelted stones and destructed the office of the SDM
situated in Bansgaon and office of the DM at Gorakhpur
under the criminal conspiracy and flamboyant speech
against the government and instigation for criminal acts by
the persons abovenamed and in the same way the
miscreants of these organizations robbed and set afire the
shops of Muslims in other Kasbas Khajani, Kauriram,
Bansgaon, etc. of the Gorakhpur district. In Kasba
Khajani, these miscreants entered the mosque and and
Madarsa Arabia Ahal-e-Sunnat and robbed and destroyed
the same and also robbed and set afire the shops of 15
Muslims, whose details have been mentioned in the
petition dated 5th July, 2007 written by Mohammad Asad
Hayat to the Senior Superintendent of Police, Gorakhpur
and the vehicles of Muslims plying on the road were also
made targets. In Kasba Gola, the shops of Akhtar Hussain
S/O Muhhamad Umar, Guiab Hussain S/O Ismail, Abrar
S/O Sarfaraz, Aftab S/O Noor Alam, Feroz and Tahir were
also robbed and set afire. In Kasba Kauriram, the shops
of Nabi Muhammad, Nizamuddin, Majnu and Yusuf were
also set afire. In Kasba Bansgaon, the shops of Tazammul
Hussain and Dr. Siraz Ansari were also robbed and burnt.
The Muslims aggrieved by these incidents were not heard
ANJU CHAUDHARY v. STATE OF U.P.
917
[SWATANTER KUMAR, J.]
by the Police. Apart from this, the shops, houses and
A
Tazias of Muslims were robbed and burnt in many rural
areas of Gorakhpur district. All these incidents have been
published in Newspapers from 29th January, 2007 to 15th
February, 2007. All these criminal acts were done by the
follower activists of Yogi Aditya Nath connected to Hindu s
Yuva Vahini, BJP and Vyapar Manda! on instigation by
aforesaid enraging speech by Yogi Aditya Nath and under
the conspiracy hatched by Yogi Aditya Nath and other
abovenamed persons.
9. That Yogi Aditya Nath delivered a enraging speech
C
addressing "Hindu Chetna Rally" in Kasba Kasaya District
Padrauna on 28th January, 2007 and asked the Hindus
that they shed fear of death from their hearts. It is
necessary to mention here that in Purvanchal, Hindu Yuva
Vahini under the leadership of Yogi Aditya Nath was
D
hatching a conspiracy to disrupt communal harmony, to
annoy Muslims and to harm them since earlier times and
was looking for an appropriate situation for the same and
it's activists were active for the same. This appropriate
situation met them in the background of murder of E
Rajkumar Agrahari in Gorakhpur town in the night of 26/
27th January, 2007. The activists of Hindu Yuva Vahini and
BJP were jointly holding public meetings at the different
places since first week of January 2007 itself in Kotwali
Padrauna area of Kushinagar district and were raising
F
slogans that if you have to live in Purvanchal, then you
must have to chant name of Yogi and whoever chants the
name of Ali, he will be beaten in every street. The office
bearers and activists of Hindu Yuva Vahini were delivering
communal speeches and were canvassing that Muslims G
must be taught a lesson and they have to be harmed to
such an extent that they do not dare raise their heads and
any of their religious ceremony has not to be allowed to
be completed. In this respect, all such information are
recorded in the G.D. of Kotwali Padrauna town on different
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dates in the month of January, 2007.
10. That all the preparations to carry out such wrongful acts
and spread the same in Gorakhpur Division and Basti
Division had been completed by Hindu Yuva Vahini, BJP
and Vyapar Mandal under the leadership of Yogi Aditya
Nath and the speech delivered by Yogi Aditya Nath in the
aforesaid "Warning" meeting and the torch procession
conducted on Gorakhpur Railway Station in the night of
dated 27th January, Gorakhpur Railway Station in the night
of date 27th January, 2007 and the "Hindu Chetna Rally"
conducted in Kasaya of district Kushinagar on 28th
January, 2007 further provoked and directed their activists
and thereafter Yogi Aditya Nath got himself arrested at the
border of Gorakhpur district on 28th January, 2007 while
returning from Kasaya under conspiracy and it was
canvassed by the activists of Hindu Yuva Vahini, BJP and
Vyapar Mandal under conspiracy only that the
administration has arrested the prophet of Hindu Welfare,
hence got the brawl spread in relation to this arrest the
background background of the public provocation on
account of aforesaid speech. And robbed, burnt and
destroyed and properties of Muslims, their religious
places, epics, emblems, Tazias and government vehicles
and buildings, offices buses of roadways and railways and
in this sequence, condemnable crimes killings of Muslims
and attempt to kill Muslims were carried out."
5. Another very vital fact, that requires to be noticed at this
stage itself, is that on 26th January, 2007, Rajkumar Agrahari,
a Hindu boy was murdered in Gorakhpur, which resulted in
G breaking out of communal violence in the city and imposition
of curfew under Section 144 of the Code. On 27th January,
2007 a condolence meeting for the murder of Raj Kumar was
organised which was attended by many persons including Anju
Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath,
H Member of Parliament from that constituency. It appears from
ANJU CHAUDHARY v. STATE OF U.P.
919
[SWATANTER KUMAR, J.]
the record that the High Court had also passed some orders
A
in regard to the investigation of the case and finally the police
had registered a case under Section 302 of the Indian Penal
Code, 1860 (for short 'IPC'), and had even filed a charge sheet
under Section 173 of the Code before the Court of competent
jurisdiction against six unknown accused persons.
B
6. Apart from this incident and before the public meeting
attended by above-stated Anju Chaudhary, another incident
took place at the shop of one Hazrat S/o Bismilla under Police
Station Gantt. In this incident, the shop of Hazarat was set on
C
fire at about 6 p.m. on 27th January, 2007 causing heavy
damage to the same. In fact, as per the report lodged by him,
he was working in that shop and owner of the shop was one
Md. Isa Ansari. According to him, some unknown persons,
claiming to be from Hindu Yuva Vahini, had set the shop on fire.
He neither knew their names nor their addresses. This report D
was sent by post and was, thus, received by the Police Station
and registered as FIR No.145 of 2007 on 3rd February, 2007.
The police had registered a case against unknown persons
under Sections 147, 427, 436 and 506 IPC read with Section
23 of the U.P. Gangsters and Activists Prevention Act and
E
Section 7 of the Criminal Law Amendment Act.
7. The complaint application under Section 156 IPC was
filed by Parvaz on 16th November, 2007, nearly 10 months after
the date of occurrence. This application, which was heard by
F
the learned Chief Judicial Magistrate, was rejected vide order
dated 29th July, 2008. The learned Magistrate expressed the
opinion that since Crime Case No.145 of 2007 had already
been registered, as noticed above, there was no propriety to
register an FIR again. The intention of the legislature was to G
provide speedy criminal law and justice to all. Thus, there was
no need to conduct fresh investigation by another person merely
by lodging a fresh FIR. The Court held that to pass such an
order was not justifiable and rejected the application. The thrust
of the order of the learned Magistrate was primarily on this
H
aspect of the case.
920
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
8. Aggrieved from the order dated 29th July, 2008, Parvaz
filed a revision petition before the High Court. The High Court
vide its judgment dated 26th September, 2008 set aside the
order of the learned Magistrate under revision and directed the
Magistrate to pass a fresh order on the application of
B
respondent No.2. While passing this order, the Court held as
under:
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"11. In addition to the aforesaid averments, various other
allegations have also been made in the application under
Section 156(3) Cr.P.C. From all these allegations, prima
facie cognizable offences of very serious nature requiring
police investigation are disclosed. Hence, the learned
CJM Gorakhpur ought to have passed the order in present
case for registration of FIR against the persons named in
the application under Section 156(3) Cr.P.C. and its
investigation by the police, but it is very unfortunate that due
to lack of adequate legal knowledge, without going into the
allegations made in that application, the learned CJM has
rejected the application merely on the ground that in view
of the FIR registered at case Crime No.145 of 2007 at
P.S. Cantt., there is no justification to get the second FIR
registered. This view of the learned CJM is wholly
erroneous. Annexure (iv) is the copy of the FIR, which was
registered at Case Crime No.145 of 2007 at P.S. Gantt
Gorakhpur on the basis of the application of Hazarat S/o
Vismilla. On perusal of this FIR, it is revealed that the said
FIR relates to the incident, which had occurred on
27.01.2007 at about 6.00 p.m., in which damage was
caused to the shop of the complainant Hazarat by some
named persons of Hindu Yuwa Wahini. That FIR was
lodged regarding one incident only, whereas in the
application under Section 156(3) Cr.P.C. a number of
incidents have been mentioned, which occurred on
different places affecting different persons. Therefore, it
cannot be said that the FIR registered at Case Crime
No.145 of 2007 covers all the incidents mentioned in the
ANJU CHAUDHARY v. STATE OF U.P.
921
[SWATANTER KUMAR, J.]
application under Section 156(3) Cr.P.C. As such, there A
was no legal bar in this case to get the First Information
Report registered on the basis of the application moved
by the applicant revisionist under Section 156(3) Cr.P.C.
and its investigation by the police, because all the
allegations made in the said application and in the FIR B
registered at Case Crime No.145 of 2007 are not the
same.
12. Although, in view of law laid down by a Division Bench
of this Court in the case of Sukhwasi Vs. State of U.P.
2007 (59) ACC 739 in which Full Bench decision of the C
case of Ram Babu Guta & Ors. Vs. State of U.P. 2001
(43) ACC 50 has been relied upon, application under
Section 156(3) Cr.P.C. can be treated as complaint, but
on the basis of the allegations made in the application
under Section 156(3) Cr.P.C. in the present case prima D
facie cognizable offences of very serious nature requiring
police investigation are disclosed. Hence, treating the
application under Section 156(3) Cr.P.C. as complaint in
present case would not be legal and justified. While
passing order for treating the application under Section E
156(3) Cr.P.C. as complaint, the following observations
made by the Full Bench of this Court in the case of Ram
Babu Gupta {supra) must be kept in mind by the
Magistrate/Judges:-
F
"However, it is always to be kept in mind that it is
the primary duty of the police to investigate in case
involving cognizable offences and aggrieved person
cannot be forced to proceed in the manner
provided by Chapter XV and to produce his G
witnesses at his cost of bring home the charge to
the accused. It is the duty of the state to provide
safeguards to the life and property of a citizen. If
any intrusion is made. by an offender, it is for the
State to set the law into motion and come to the aid H
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of the person aggrieved."
13.