S.C.AGARWAL, J. - (1.) THIS revision under Section 397/401 Cr.P.C. is directed against the order dated 8.9.2010 passed by the C.J.M., Shahjahanpur in Criminal Case No. 7137 of 2009 (Kamal Kishore v. Rakesh and others), P.S. Roza, District - Shahjahanpur, whereby the revisionists Rakesh, Vishwambhar Dayal, Mundan and Babu were summoned to face trial under Sections 302/34, 504 IPC. Counter and rejoinder affidavit have been exchanged between the parties. Heard Sri Manish Tiwari, learned counsel for the revisionists, Sri Radhey Shyam Shukla, learned counsel for opposite party No. 2 as well as learned AGA appearing on behalf of the State of U.P.
(2.) LEARNED counsel for the revisionists submitted that the FIR in this case was lodged by opposite party No. 2 against the revisionists but after investigation, the revisionists were found to be innocent and involvement of Ram Autar (brother of the complainant - opposite party No. 2) came to light and police submitted charge -sheet against the Ram Autar under Sections 302, 504 IPC. It is further submitted that in this incident, Smt. Seema wife of complainant was murdered by brother of the complainant and a false FIR was lodged against the revisionists but after investigation, true facts came to light. Subsequently, the complainant filed a criminal complaint wherein opposite party No. 2 was examined under Section 200 Cr.P.C. and Ram Autar was examined under Section 202 Cr.P.C. and by impugned order, learned Magistrate summoned the revisionists. The contention is that in respect of the same incident, two prosecutions cannot proceed simultaneously. Once the FIR lodged by opposite party No. 2 was found to be false and charge -sheet was submitted against Ram Autar, it was not open for the complainant to lodge complaint case on the basis of same facts and the opposite party No. 2 would have an opportunity to lead evidence and to move an application under Section 319 Cr.P.C., if required, in the sessions trial pending against Ram Autar. Per contra, learned counsel for the complainant submitted that the police, from the very beginning, colluded with the accused persons (revisionists) and deliberately disbelieved the testimony of complainant and other witnesses recorded during the course of investigation and charge -sheet against Ram Autar was filed on the basis of statements of accused persons recorded in the case diary. The accused named in the FIR were made witnesses in the chargesheet and in these circumstances, opposite party No. 2 had no other course left except to file a criminal complaint. Learned counsel further submitted that no second FIR is being lodged by the complainant by improving his case. The facts mentioned in the FIR lodged by the complainant and the facts mentioned in the criminal complaint are the same without any further improvement. Since the police did not investigate the case properly, the complainant had no option but to lodge a criminal case which cannot be said to be barred by any law. Learned counsel for the revisionists relied upon a decision of the Apex Court in T.T. Antony v. State of Kerala ; AIR 2001 SC 2637 wherein it was held in para 28 of the judgment : - 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.P.C. or under Articles 226/227 of the Constitution."" The decision in the T.T. Antony (supra) was again considered by the three Judge Bench of the Apex Court in AIR 2004 SC 4320 ; Upkar Singh v. Ved Prakash. The Court observed that the decision in the T.T. Antony case did not preclude an aggrieved person from filing a counter case. Para 17 of the judgment is as under : - It is clear from the words emphasizes hereinabove in the above quotation, this Court in the case of T.T. Anotny V. State of Kerala & others has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. In our opinion, this Court in that case only held 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 be""cause an investigation in this regard would have already started and further complaint against the same accused will amount 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 counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident.""
(3.) THE aforesaid rulings do not help the revisionists in any manner. The criminal complaint filed by opposite party No. 2 was based on the same facts of which the FIR was lodged. The version was not improved in any manner. During investigation, many Investigating Officers were changed at the instance of parties. The complainant as well as the witnesses cited by him in the FIR, supported the FIR version but for the reasons best known to the Investigating Officer, charge - sheet was not filed against the revisionists but was filed against brother of the complainant citing persons named as accused in the FIR as witnesses. Thus, though the complaint is based on the same FIR but is the counter version of the case set up by the police during investigation. Such a complaint cannot be said to be barred by law. Only lodging of second FIR at the instance of the same complainant is barred. Here, the complainant does not want to file a fresh FIR but dissatisfied with the investigation done by the police, filed a criminal complaint case based on the same FIR, which cannot be said to be barred by Section 154 and 162 Cr.P.C. The complaint case filed by opposite party No. 2 is not a cross version of the earlier FIR but is a cross version of the case set up by the police during investigation. If such a complaint is considered to be barred by law, the complainant would be totally remedy -less, which cannot be the intention of the legislature. In these circumstances, I am of the view that the submission of learned counsel for the revisionists that after investigation on the basis of FIR lodged by the opposite party No. 2, a complaint case on the same facts is barred, cannot be accepted. Similarly, there is no force in the submission that during trial against Ram Autar, the complainant would have an opportunity to lead evidence and to move an application under Section 319 Cr.P.C. for summoning the revisionists as accused, if sufficient material exists on the record. In the aforesaid sessions trial , all the accused named in the FIR have been made witnesses. The witnesses cited by opposite party No. 2 in the FIR have not been named as witnesses in the charge -sheet. In these circumstances, no proper opportunity would be available to opposite party No. 2 to lead evidence against the revisionists in the aforesaid sessions trial.;