- (1.) AMAR Saran, J. Heard Sri J. S. Sengar, assisted by Sri R. N. Sharma, learned counsel for the applicants, Sri Satish Trivedi, learned counsel for opposite party No. 2, and learned AGA for the State, and perused the record.
(2.) THIS application under Section 482 Cr. P. C. has been filed for quashing charge-sheet No. 61-B of 1998, dated 25-8-1998, in Crime No. 80-B of 1991 under Sections 395, 147, 148, 149, 307, 504, 506, 427, 452 IPS, PS Jaitpur, District Agra, and the consequent criminal proceedings arising out of the aforesaid case pending in the Court of Spl. Judge (DAA), Agra, in SST No. 23 of 2000, State v. Sobaran Singh and others. The aforesaid charge-sheet was submitted in consequence of an investigation conducted by the police of PS Jaitpur in pursuance of an order dated 6-2-1992, which was passed on an application under Section 156 (3) Cr. P. C. dated 4-2-1992. The allegations in the application under Section 156 (3) Cr. P. C. were that the applicants and one Jagdish attacked the house of complainant, Ram Bharosey Dubey, opposite party No. 2, on 15-12-1991, carrying illegal arms, guns, rifles, lathies, spears etc. and after abusing and issuing threats to opposite party No. 2 and his family members they fired on them. The accused persons along with some unnamed villagers even climbed up the house of opposite party No. 2 and started demolishing the roof, and firing with the intention of killing opposite party No. 2 and his family members. The miscreants are said to have looted away the clothes, utensils, jewellery and other valuables to the extent of Rs. 50,000/-and further they are said to have set the house of opposite party No. 2 on fire with the intention of killing them, which resulted in the property getting burnt down and to have caused destruction to the property to the tune of Rs. 4,000/ -. Opposite party No. 2 and his family members, such as his wife, his daughter and his son, Desh Deepak, who was present in the house, and others, raised a hue and cry and threw stones and started firing in self defence. It is only after the police had arrived at the spot that opposite party No. 2 and his family members were saved. The incident was witnessed by Om Prakash Dubey, Akhilesh, Naresh and others who gathered on hearing the noise that was raised. The police did not take down the report lodged by opposite party No. 2 and his son Desh Deepak, when they went to the police station after the incident because of the influence of block pramukh, (the applicant Sobaran Singh) and even arrested opposite party No. 2 and his son illegally and involved them in a false case. When no action was taken on the oral report of opposite party No. 2, then on 22-1-1992 opposite party No. 2 sent an application through jailer of the district jail to the SSP, Agra, and an application by registered post to the DIG, Agra. As no action was taken on the aforesaid application also, opposite party No. 2 filed the aforesaid application under Section 156 (3) on 4-2-1992. By an order dated 6-2-1992 the learned Spl. Judge (DAA), Agra, directed investigation of the case, observing that the reliability of the evidence could not be considered in an application under Section 156 (3) Cr. P. C. as it could not be said that there was no evidence disclosing the commission of a cognizable offence. In the first place it was contended by the learned Counsel for the applicants that this application under Section 156 (3) Cr. P. C. has been filed in a mala fide manner as a counterblast to the murder case that opposite party No. 2 and his sons Desh Deepak and Ashok @ Munna Lal were already at case crime No. 80 of 1991, P. S. Jaitpur, Agra for having murdered Dhruv Singh Yadav, Bhikki @ Raj Mohd. and on police constable on 15-12-1991 in respect of which an FIR was lodged on 15-12-1991 itself. No one appears to have sustained any injury also on the side of the prosecution. As has been rightly observed by the learned Spl. Judge that questions of the reliability of the evidence could not be considered at the time when the application was moved under Section 156 (3) Cr. P. C, as at that time all that was required to be seen was whether a cognizable offence was disclosed in the application under Section 156 (3) Cr. P. C. Whether the conviction could ultimately be sustained on the said application is a matter to be appreciated by the trial Court during the trial of the case, and on mere allegations of mala fide, no order directing registration of a case and investigation on an application under Section 156 (3) Cr. P. C. can be quashed.
(3.) SECONDLY, it was stated by the learned counsel for the applicants that earlier an application dated 9-1- 1992 was moved under Section 156 (3) Cr. P. C. by Dileep Kumar Dubey another son of opposite party No. 2, Ram Bharosey Dubey, which contained the same allegations. But in response to that application, the learned Spl. Judge (DAA), Agra, had passed an order on 18-1-1992 rejecting the application on the ground that certain formalities had not been completed, such as the applicant had not furnished particulars of opposite party No. 2, and that they had not showed that they had approached the police station of Jaitpur for lodging a report under Section 154 (1) Cr. P. C. or applied to the SSP under Section 154 (3) Cr. P. C. before moving the application under Section 156 (3) Cr. P. C. However in the present application dated 4-2-1992 1 find that the aforesaid steps have been complied with by opposite party No. 2. Even otherwise also, in my opinion, the Spl. Judge appears to have erred in earlier refusing to direct the investigation of the case on an application under Section 156 (3) Cr. P. C. by holding that it was a pre-condition that prior to such an order the applicant must approach the police station and also furnish the proof that he has applied to the SSP under Section 154 (3) Cr. P. C. I do not think that any such mandate is cast in law that such a procedure must necessarily be adopted before an order for registration and investigation of a case is passed under Section 156 (3 ). Be that as it may, after the investigation pursuant to the order of the learned Spl. Judge dated 6-2-1992 the charge-sheet, as mentioned hereinabove, has already been submitted. After the submission of the charge-sheet, even if there was any defect in the investigation, the same stood cured. This position has been affirmed in several decisions of the apex Court including the case of Prakash P. Hinduja v. UOI, AIR 2003 Supreme Court 2612. Thus, in paragraph 21 of the aforesaid law report, it has been observed that : "the Supreme Court in H. N. Rishbud has held that if cognizance is in fact taken on a police report initiated by the breach of mandatory provision relating to investigation, the result of the trial, which follows it, cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. Hence, even assuming for the sake of argument that CBI committed an error or illegality in submitting the charge-sheet without the approval of the CVC, the cognizance taken by the learned Spl. Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. " Thirdly, it was contended that on the same material there could be no two FIRs as one of the FIRs has already been lodged by applicant No. 1, against opposite party No. 2 and other family members. In this regard, it had been clarified by the apex Court in the case of Kari Chowdhuri v. Mst. Sita Devi and others: [2002 (1) JIC 248 (SC) : JT 2001 (10) Supreme Court 361], that when there are two rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Again, recently, in the 3 Judge decision of the apex Court in Upkar Singh v. Ved Prakash and others, 2005 (1) JIC 109 (SC) : JT 2004 (7) 488, the law laid down in the 2 Judge decision in T. T. Anotony v. State of Kerala and others, 2001 (2) JIC 818 (SC) : JT 2001 (3) Supreme Court 440, has been doubted and it has been held that when there is a counter version, if the registration of a case and investigation on the counter version prohibited, it would result in a serious consequence. It is further stated in the aforesaid law report that if in regard to the crime committed by the real accused, he takes the first opportunity to lodge a false report and the same is registered by the jurisdictional police, then it would be a travesty of justice if the aggrieved victim could not bring forward his version of the incident. Therefore, simply because an FIR was first registered on the information by the applicant Sobaran, there was no bar on the registration of another FIR on the application given by opposite party No. 2, Ram Bharosey Dubey.;