Amar Saran, J. - (1.) Heard learned counsel for the appellant and learned AGA for the State, and perused the record.
(2.) This application under Section 482 Cr.P.C. has been filed for challenging an order dated 26.6.2002 passed by CJM, Agra, in Case No. Nil of 2002: Sabir Ali v. Jaswant and Ors., directing registration of an FIR and investigation in the case against the applicants and others on an application under Section 156(3) Cr.P.C. moved by Sabir, brother of deceased Chhotey @ Alamgir. The ground for challenge was that earlier Sub-Inspector of Police Station Sikandara, Agra, Sri S.S. Chauhan, had already lodged an FIR at Case Crime No. 319 of 2002 under Sections 147, 148, 149, 307 and 302 IPC and Section 7 of the Criminal Law Amendment Act at PS. Sikandara at 7 pm on 11.6.2002 against the two parties, one of Pramod Kumar Bhargava and others, and the other of B.D. Agarwal and others, who are not the accused-applicants of the present case. The present applicants have been implicated in the application under Section 156(3) Cr.P.C. moved by Sabir on 14.6.2002 before the CJM, Agra. In that application it has been alleged that his brother had been murdered by the applicants. The FIR by Sri S.S. Chauhan, on the other hand, had mentioned that there was cross-firing between the two parties led by P.K. Bhargava and B.D. Agarwal and one person had lost his life in the crossfire. On being satisfied with the application under Section 156(3) Cr.P.C., the learned CJM, Agra, had been pleased to pass the aforementioned order dated 25.6.2002, directing registration of the case and investigation against the applicants.
(3.) Principally, the applicants' learned counsel has referred to the case of T.T. Antony v. State of Kerala and Ors. [JT 2001 (3) SC 440] to contend that there could be no second FIR in respect of the same incident. This decision was of a two-judge bench of the apex court which has been recently re-examined by a three-judge bench of the apex court in the case of Upkar Singh v. Ved Prakash and Ors. [JT 2004 (7) 4881, as the correctness of the law laid down in T.T. Anthony's case (supra) had been doubted and the matter had been referred by the Chief Justice of India for being heard by a larger bench. The aforesaid case of Upkar Singh (supra) has held that so far as a counter case was concerned, even T.T. Antony's case (supra) did not prevent filing of a second FIR. It only restricted the filing of a second FIR where the accused were the same. The apex court in Upkar Singh's case (supra), alluding to T.T. Antony's case (supra), held in paragraph 18 as follows: "...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 to an improvement on (he 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. ";