- (1.) MRS. Poonam Srivastava, J. The respondent Nos. 5, 6, 7 and 8 are proposed accused. Counsel for the petitioner made a request for granting permission to delete name of the respondent Nos. 5, 6, 7 and 8 from array of the party. She is allowed to do so. The instant writ petition is being heard only against the State. Learned A. G. A. was allowed three weeks' time to file counter- affidavit on 9-2-2007 but no counter-affidavit has been filed so far. Since only legal question is to be decided, I proceed to hear the case.
(2.) HEARD Smt. Swati Agrawal, learned Counsel for the petitioner and learned A. G. A. for the State. The orders impugned in the instant writ petition are dated 4- 6-2006 passed by Chief Judicial Magistrate, J. P. Nagar, confirmed in revision on 22-12-2006 by the District and Sessions Judge. J. P. Nagar, rejecting the application on behalf of the petitioner under Section 156 (3), Cr. P. C. Facts giving rise to the dispute are that the daughter of the petitioner Smt. Sunita and her grand- daughter Km. Annu were killed. The petitioner's son moved an application before the D. I. G. Moradabad Division Moradabad and the I. G. Police Bareilly but all efforts failed to yield any result. Aggrieved by the non-cooperation of the police authority, an application under Section 156 (3), Cr. P. C. was preferred before the Chief Judicial Magistrate on 25-8-2006. It was brought to the notice of the Magistrate that brother-in-law of the deceased, Suresh Chandra Pal lodged First Information Report at Case Crime No. 633 of 2006 against seven accused. The petitioner apprised the Magistrate about the fact that the crime was committed by the brother-in-law himself but the F. I. R. was registered against other person only with an intention to shield himself. The prayer was for a direction to the S. H. O. Gajraula to register and investigate the matter. The application under Section 156 (3), Cr. P. C. was rejected by the Magistrate vide order dated 4-9-2006 on the basis of police report that a report is already in existence registered at Case Crime No. 633 of 2006 under Sections 147, 452, 302 and 120-B, I. P. C. and charge-sheet has been filed by the police. The Chief Judicial Magistrate, J. P. Nagar passed an order that since a report was lodged regarding same incident, he was not competent to direct for registration of second F. I. R. The order dated 4-9- 2006 rejecting the application under Section 156 (3), Cr. P. C. was challenged in a Criminal Revision No. 146 of 2006, which was dismissed as well on the basis of principles laid down by the Apex Court in the case of T. T. Antony v. State of Kerala and Ors. , 2001 (2) JIC 818 (SC) : AIR 2001 SC 2637.
(3.) LEARNED Counsel for the petitioner has placed reliance on a subsequent decision of the Apex Court Upkar Singh v. Ved Prakash and Ors. , 2005 (1) JIC 109 (SC) : 2004, Crlj 4219. It is submitted that the version given by the petitioner in her application under Section 156 (3), Cr. P. C. is no doubt regarding the same incident i. e. murder of the daughter and grand- daughter but the accused are different, the allegations are also altogether changed from the version of the F. I. R. lodged by Suresh Chandra Pal. Thus, it is a counter version of the same occurrence. The Counsel states that the first report was only with a view to camouflage the real facts and, therefore, the Magistrate's order is absolutely illegal and based on technicalities. After hearing the respective Counsels at length, it is apparent that the Apex Court analysed the principles laid down in the case of T. T. Antony (supra ). For ready perusal, paragraph Nos. 15 and 16 of the case of Upkar Singh (supra) are quoted hereinbelow : "15. Having carefully gone through the above judgment. We do not think that this Court in the said cases of T. T. Antony v. State of Kerala and Ors. 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 and Ors. . In paragraph 27 of the judgment wherein while discussing the scope of Sections 154, 156, and 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 Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Sections 482, Cr. P. C. or under Articles 226/227 of the Constitution" [emphasis supplied] 16. 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 and Ors. 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 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 Ist complaint or on his behalf alleging a different version of the said incident. ";