- (1.) HEARD learned counsel for the applicant and learned A.G.A. for the State.
(2.) THIS application has been filed challenging the order dated 10-5-2005 passed by the Sessions Judge, Sonebhadra in Criminal Revision No. 89 of 2004, Gulab Rai v. State and others, under S.147, S.323, S.435, S.427, S.504 I.P.C., Police Station Robertsganj, District Sonebhadra whereby the order dated 12-10-2004 passed by the Magistrate under S.156(3) Cr.P.C. has been set aside. The facts giving rise to the dispute is that an incident took place on 28-9-2004 within the college campus while the meeting of the members of Committee of Management of Jang Bahadur Inter College, Shahganj, Sonebhadra was continuing. One of the teachers was sitting on hunger strike and two other teachers instigated the students, as a result, the vehicle of the Manager and other members were set at fire. A first information report was lodged by the Principal of the institution on the same day at 12.30 p.m. which was registered at case crime No. 989 of 2004, under S.147, S.323, S.435, S.427, S.504 I.P.C. Police Station Robertsganj, District Sonebhadra. A copy of the first information report has been annexed as Annexure - 1 to the affidavit. A perusal of the first information report shows that it has been detailed that furniture of the college was broken and the crowd went berserk. Subsequently an application was moved by the applicant, who is the Manager of the institution, under S.156(3) Cr.P.C. before the Chief Judicial Magistrate, Sonebhardra on 12-10-2004 against ten persons. This application was moved against two teachers namely Sri Gulab Rai and Ram Bahal Singh and few others but the incident was one and the same, which was registered as Misc. Case No. 384 of 2004, Rajeev Kumar Singh v. Gulab Rai and others. A copy of the application is annexed as Annexure - 2. The Chief Judicial Magistrate, Sonebhadra vide order dated 12-10-2004 directed the Station Officer Police Station Robertsganj to register and investigate the case. It is thus apparent that the order was passed on that very day on which application was moved without calling for any report from the police. The accused opposite party No. 2 moved an application on 14-10-2004 before the Judicial Magistrate, Sonebhadra bringing to his notice that a first information report has been registered regarding the same incident and the police is investigating the matter. It was also brought to the notice of the Chief Judicial Magistrate that the applicant Rajeev Kumar Singh has been arrested as an accused in the cross - case in case Crime No. 989 - A, under S.147, S.342, S.323, S.504 I.P.C. and he has already been granted bail in the said case. It was further contended that these material facts have been concealed by the applicant and the order has been obtained under S.156(3) Cr.P.C. The application on behalf of opposite party No. 2 was rejected on the same day by the Chief Judicial Magistrate, Sonebhadra on the ground that since an order has already been passed for registering the case and investigating the same, he cannot recall his own order. The said order is annexed as Annexure - 5 to the affidavit. On perusal of the order, it transpires that while rejecting the application, the Chief Judicial Magistrate observed that in the event, it is true that the case is at case Crime No. 989 of 2004 and case Crime No. 989 - A of 2004 is being investigated, then the Investigating Officer can very well look into the matter himself and it does not call for any order from him. Subsequently this order was challenged by filing a criminal revision No. 89 of 2004 which has been allowed by the revisional Court on the basis of a decision of the Apex Court, 2001 SCC (Cri) 1048 : JT 2001 (5) SC 440 : AIR 2001 SC 2637, T. T. Antony v. State of Kerala. The Apex Court had held that no fresh investigation on receipt of a subsequent information in respect of the same cognizable offence of or the same occurrence or incident can be entertained. The Supreme Court had ruled that the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident. This decision was subject of review in a subsequent decision in the case of Upkar Singh v. Ved Prakash and Others, JT 2004 (7) SC 488 : 2004 All LJ 3486. The Apex Court had ruled that in the case of T. T. Anthony (supra) is accepted in its totality, then the result will be a complete exclusion of registration of a complaint in the nature of counter case. In fact the Supreme Court in the case of Upkar Singh (supra) clarified the intention of the Hon'ble Judges in the case of T. T. Anthony to the effect that the Supreme Court 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 and further complaint against the same accused will amount to an improvement on the fact mentioned in the original complaint, hence will be prohibited under S.162 of the Code. For perusal, paragraphs 17 and 18 of the said judgment in Upkar Singh's case are quoted below: "17. Having carefully gone through the above judgment, we do not think that this Court in the said cases of T. T. Anthony v. State of Kerala has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T. T. Antony v. State of Kerala in paragraph 27 the judgment wherein while discussing the scope of S.154, S.156 and S.173(2) Cr.P.C., this is what the Court observed : - "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 offences 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 S.173(2) has been forwarded to the magistrate, may be a fit case for exercise of power under S.482 Cr.P.C. or under Art.226/227 of the Constitution." (Emphasis supplied.) 18. It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T. T. Antony v. State of Kerala, 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 because 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 S.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.) LEARNED counsel for the applicant has cited two decisions of this Court, Vipin Chaudhary and Others v. State of U.P. and Another, 2005 (1) U.P. Criminal Rulings : 2005 All LJ 782, I have gone through the said judgment and I am of the view that it does not help the applicant. While dismissing the application of the applicant this Court had followed the decision of Upkar Singh's and T. T. Antony's cases (supra) and clearly said that the prohibition noticed by this Court does not apply to the counter complaint by the accused in the first complaint or on his behalf alleging different version of the said incident.;