Vijay Kumar Verma - (1.) -Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant and learned A.G.A., for the State and perused the record.
(2.) BY means of this application under Section 482 of the Code of Criminal Procedure (in short, the Cr. P.C.), order dated 10.3.2008, passed by the C.J.M., Banda on the application of the applicant under Section 156 (3), Cr. P.C. has been challenged. By the impugned order, the application moved by the applicant under Section 156 (3), Cr. P.C. has been rejected. From the record, it transpires that an F.I.R., was lodged at P.S. Kamasin by Shankar Singh s/o Shiv Nayak Singh resident of Shohut. On the basis of that F.I.R.,, a case under Section 302, I.P.C. at Case Crime No. 206/07 was registered against unknown persons on 27.11.2007 at 1.10 a.m. It was alleged in that F.I.R., that when Kamlesh Singh, brother of the informant alongwith Dhanpat S/o Bahori was irrigating his field from the tube-well of Indresh Singh on 26.11.2007 at about 9.30 p.m., four unknown persons committed his murder by causing injuries to him by firearms. During pendency of the investigation of that case, the applicant Awadhesh Singh, who is also the brother of the informant Shankar Singh moved an application under Section 156 (3), Cr. P.C. in the Court of C.J.M. Banda nominating opposite party Nos. 2 to 6 as accused. It is alleged in that F.I.R., that his brother Kamlesh taking Rs. 46,000 from his mother had gone with the accused Brij Kumar Singh, Ram Chandra Singh, Dhanpat, Pappu and Ram Bharat Singh for purchasing building material to construct the house, who committed his murder at about 9.30 p.m. and robbed the money, which he was carrying. After calling for a report from police station concerned, the learned Chief Judicial Magistrate vide impugned order dated 10.3.2008 has rejected the application under Section 156 (3), Cr. P.C. vide impugned order. Being aggrieved, the applicant has approached this Court to quash that order.
(3.) THE application moved by the applicant under Section 156 (3), Cr. P.C. has been rejected by the learned C.J.M., Banda vide impugned order mainly on the ground that F.I.R. regarding murder of Kamlesh has already been lodged at P.S. Kamasin at Case Crime No. 206/07 and investigation is going on and hence, for the same murder second F.I.R., cannot be lodged. Placing reliance on the case of Vikram and others v. State of Maharashtra, (2008) 1 SCC (Cri) 362 : 2007 (3) ACR 2980 (SC), it is submitted by learned counsel for the applicant that second F.I.R., in this case is not barred, as first F.I.R., was not properly lodged by S.O. P.S. Kamasin. It is further submitted that application naming the opposite party Nos. 2 to 6 was submitted by Shankar Singh regarding the murder of Kamlesh, but S.O. P.S. Kamasin did not lodge the F.I.R. on the basis of that application and F.I.R., against unknown persons has been lodged and hence, on this ground also second F.I.R. is not barred.;