P. SREEKUMAR versus STATE OF KERALA & ORS. on 19 March 2018

[2018] 3 S.C.R. 665

P. SREEKUMAR

v.

STATE OF KERALA & ORS.

(Criminal Appeal No. 408 of 2018)

MARCH 19, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Criminal Procedure, 1973: s.482 – Two FIRs filedin relation to the same offence and against the same accused –Whether the subsequent FIR was liable to be quashed – In the instantcase, appellant was Chief Executive Trustee of a Trust and respondentno.2 was one of the trustees and respondent no.3 was treasurer ofthe Trust – Respondent no.2 filed a complaint against the appellant,respondent no.3 and three bank officials alleging that they conspiredtogether to defraud the Trust and siphoned off around Rs.42 lacsof the Trust – FIR was registered – Subsequently, appellant alsofiled an FIR against respondent no.3 alleging fraud and forgery –Appellant failed in seeking quashing of proceedings pending againsthim – However, respondent no.3 successfully moved applicationfor quashing of FIR filed against him by appellant on the groundthat he cannot be made to face two trials on the same set of factsand for same offences in two different courts – Hence appeal –Held: The second FIR filed by the appellant against respondentNo.3 though related to the same incident for which the first FIR wasfiled by respondent No.2 against the appellant, respondent No.3and the three Bank officials, yet the second FIR was legallymaintainable and could be entertained for being tried on its meritsfirstly since the second FIR was not filed by the same person, whohad filed the first FIR, secondly it was filed by the appellant as acounter-complaint against respondent No.3 and thirdly the first FIRwas against five persons based on one set of allegations whereasthe second FIR was based on the allegations different from theallegations made in the first FIR – Trial against respondent no.3restored to its file for being tried on merits in accordancewith law.

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666SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD : There is no prohibition in law to file the secondFIR and once it is filed, such FIR is capable of being taken noteof and tried on merits in accordance with law. The second FIRfiled by the appellant against respondent No.3 though related toBthe same incident for which the first FIR was filed by respondentNo.2 against the appellant, respondent No.3 and three Bankofficials, yet the second FIR being in the nature of a counter-complaint against respondent No.3 was legally maintainable andcould be entertained for being tried on its merits. It is for thereasons that firstly, the second FIR was not filed by the sameCperson, who had filed the first FIR. Had it been so, then thesituation would have been somewhat different. Such was not thecase here; Second, it was filed by the appellant as a counter-complaint against respondent No.3; Third, the first FIR wasagainst five persons based on one set of allegations whereas theDsecond FIR was based on the allegations different from theallegations made in the first FIR. The Magistrate will now proceedto try and decide the case on merits and while doing so, he willbe free to examine all the issues arising in the case from all theangles in the light of the evidence that will be adduced by theparties. If the Magistrate finds that the material brought on recordEagainst any person(s) including the appellant herein in theevidence indicating the involvement of any such person(s) incommission of the alleged offences, he will be free to proceedagainst any such person(s) in accordance with law and bring theproceedings to its logical end uninfluenced by any of ourFobservations. [Paras 31, 32, 33, 35, 36] [672-G-H; 673-A-C,F-G]

Upkar Singh v. Ved Prakash & Ors. (2004) 13 SCC292 ; Surender Kaushik & Ors. v. State of U.P. & Ors.(2013) 5 SCC 148 : [2013] 1 SCR 1053 – relied on.

GState of Haryana & Ors. v. Bhajanlal (1992) 1 Suppl.SCC 335 : [1990] 3 Suppl. SCR 259 ; Madhu Limayev. State of Maharashtra (1977) 4 SCC 551 :[1978] 1 SCR 749 ; R.P. Kapur v. State of PunjabAIR 1960 SC 866 : [1960] SCR 388 – referred to.

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P. SREEKUMAR v. STATE OF KERALA & ORS.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 408 of 2018.

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From the Judgment and Order dated 27.05.2014 of the High Courtof Kerala at Ernakulam in CRL. MC. No. 2641 of 2007.

Jayant Bhushan, Sr. Adv., Manoj V. George, Ms. Shilpa LizaGeorge,Towseef Ahmad Dar, Kamlendra Mishra, Advs. for the Appellant.

Respondent-in-person.

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The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 27.05.2014 passed by the High Court of Kerala at Ernakulum inCriminal M.C. No.2641 of 2007 whereby the High Court allowed thepetition filed by the accused-respondent No.3 herein and quashed theFIR(Annexure II), charge-sheet(Annexure III) and all consequentproceedings arising therefrom pending as C.C. No.2682 of 2002 on thefile of the JFCM-II, Ernakulum.

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3. Facts involved in the case lie in a narrow compass so also theissue involved in the appeal is a short one. The facts are mentionedhereinbelow:

4. There is one public charitable Trust by name - Vidyodaya Trust(hereinafter referred to as “the Trust”) having its office at S.N. Junction,Palarivattom in the State of Kerala. The Trust is engaged in theeducational activities and runs educational institutions in the State ofKerala.

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5. The appellant herein is one of the Chief Executive Trustees ofthe Trust whereas respondent No.2 herein is one of the Trustees andrespondent No.3 was a Treasurer of the Trust at the relevant time.

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6. On 17.10.2001, respondent No.2 (Trustee) filed a privatecomplaint against the appellant, respondent No.3 (Treasurer) and threeBank officials of the Bank in the Court of Chief Judicial Magistrate,Ernakulum (CC No.15877 of 2001) under Section 200 of the Code ofCriminal Procedure, 1973 (Annexure-P-14).

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7. In the complaint, it was inter alia alleged that the appellant,respondent No.3 and three bank officials conspired together to defraudthe Trust and to give effect to their conspiracy managed to siphon offaround Rs.42 lacs of the Trust from its Bank accounts by manipulationand forging the accounts books and several documents of the Trust.

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C8. Pursuant to the aforesaid complaint, an FIR in Crime CaseNo.817 of 2001 for the offences punishable under Sections 408, 409,420, 467, 468, 473, 477 read with Section 34 of the Indian Penal Code,1908 (hereinafter referred to as “IPC”) was registered wherein theappellant, respondent No.3 and three bank officials were named asaccused persons in relation to commission of the alleged crime.D

9. The aforesaid incident also led to filing of the FIR No.5 of 2002by the appellant (Chief Executive Trustee) against respondent No.3(Treasurer of the Trust) in North Police Station, Ernakulum under Sections406, 409, 465, 467 and 471 of IPC. It was inter alia alleged therein thatErespondent No.3 was the person, who indulged into the fraud and forgeryand he managed to take away the money belonging to the Trust bymisusing his post. Pursuant to this FIR, respondent No.3 (Treasurer ofthe Trust) was arrested and later enlarged on bail.

10. Thereafter, the police made investigation in relation to FIRFNo.5 of 2002 and submitted charge-sheet No.166 of 2002 (Annexure-P-17).

11. So far as Crime Case No.817 of 2001 arising out of ComplaintCase No.15877 of 2001 is concerned, it was registered against theappellant, respondent No.3 and three Bank officials for commission ofGthe offences punishable under Section 408, 409, 420, 467, 468, 473, 477read with Section 34 of IPC. The police made investigation in this caseand filed their final report on 06.02.2003 stating therein that no case wasmade out against appellant and three bank officials (described in thereport as Accused Nos.2, 3, 4 and 5). These four accused were, therefore,discharged from Crime Case No.817 of 2001. (Annexure-P-18).

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12. Respondent No. 2, i.e., the Trustee, however, felt aggrievedby the final report dated 06.02.2003, filed a protest petition (CC No. 28of 2004) before the Chief Judicial Magistrate, Ernakulum and prayedtherein for taking cognizance of the offences mentioned in the final report.The Chief Judicial Magistrate issued summons to the appellant andrespondent No.3 to appear before the Court on 22.07.2004.

13. Respondent No.3 filed a Criminal M.C. No.2641 of 2007before the High Court of Kerala seeking to quash the final report filed inCrime Case No.5 of 2002 pending in the Court of JMFC II at the instanceof the appellant against him.

14. In his application, respondent No.3, in substance, contendedthat he cannot be made to face two trials on the same set of facts andfor the same offences in two different Courts. He, therefore, prayedthat so far as Crime Case No.5/2002 filed by the appellant against himand the charge-sheet filed therein are concerned, the same are liable tobe quashed.

15. In the meantime, two Criminal Misc. Applications under Section482 of the Code were filed in the High Court of Kerala being CriminalM.C. No. 1732 of 2004 and Criminal M.C No. 2641 of 2007.

16. So far as Criminal M.C. No.1732 of 2004 is concerned, it wasfiled by the appellant herein wherein he sought quashing of theproceedings pending against him in the Court of Judicial First ClassMagistrate Court II, Ernakulum (Crime Case No.5 of 2002) in relationto Complaint Case No.2682 of 2002.

17. So far as Criminal M.C. No.2641 of 2007 is concerned, it wasfiled by respondent No.3 against the appellant challenging the FIR/charge-sheet filed against him by the appellant (C.C. No.2682 of 2002) in theCourt of JMFC-II, Ernakulum.

18. By impugned order, the Single Judge of the High Courtdismissed the Criminal M.C. No.1732/2004, which was filed by theappellant, and declined to quash the proceedings challenged therein. Itwas observed by the Single Judge, “it is not possible to quash the complaintat this stage”.

19. So far as the Criminal M.C. No.2641/2007 is concerned, theSingle Judge, by the same impugned order, allowed the said CriminalM.C. and quashed the FIR and the charge-sheet filed pursuant thereto.

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A20. The appellant, felt aggrieved by the dismissal of his petition(Criminal M.C. No.1732/2004) by the High Court, filed two SLPs beingSLP(Crl.) No.6319/2014 and the present SLP in this Court against theorder by which the High Court had quashed the FIR/charge-sheet filedagainst respondent No.3 and had allowed Criminal M.C. Application2641 of 2007.B

21. This Court, on 06.03.2018, dismissed the appellant’s SLPNo.6319/2014 as having become infructuous because during its pendency,the appellant and other three bank officials were discharged by thecompetent Court from the case. The appellant, therefore, did not pursuethe SLP.C

22. With these background facts, the question for consideration inthis appeal is as to whether the High Court (Single Judge) was justifiedin allowing the Criminal M.C. No.2641/2007 filed by respondent No.3and thereby was justified in quashing the FIR/charge-sheet filed againstDrespondent No.3 and all consequential proceedings arising out of theFIR/charge-sheet pending as C.C. No.2682 of 2002 on the file ofJMFC-II, Ernakulum.

23. Heard Mr. Jayant Bhushan, learned senior counsel for theappellant, Ms. Liz Mathew, learned counsel for respondent No.1 andErespondent No.2, who appeared in person.

24. Having heard the learned counsel for the appellant andrespondent No.2, who appeared in person, we are inclined to allow theappeal and set aside the impugned order passed in Cri. M.C.No. 2641 of2007.

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25. The question, which fell for consideration before the HighCourt, was that if two FIRs are filed in relation to the same offence andagainst the same accused, whether the subsequent FIR was liable to bequashed or not.

26. The Single Judge placed reliance on three decisions of thisGCourt reported in State of Haryana & Ors. vs. Bhajanlal, (1992)Supp(1) SCC 335, Madhu Limaye vs. State of Maharashtra, 1977(4) SCC 551 and R.P. Kapur vs. State of Punjab, AIR 1960 SC 866and quashed the second FIR/charge-sheet under Section 482 ofthe Code.

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27. In our view, the High Court had committed jurisdictional errorin quashing the subsequent FIR/charge-sheet, which was filed at theinstance of the appellant against respondent No.3 without adverting tothe law on the subject.

28. In our opinion, the law on the subject which governs thecontroversy involved in the appeal is no more res integra and settled bythe decision of this Court (three-Judge Bench) in the case reported inUpkar Singh vs. Ved Prakash & Ors., (2004) 13 SCC 292 and alsoby the subsequent decisions.

29. Their Lordships after examining all the previous case laws onthe subject laid down the following proposition of law in the followingwords speaking through Justice N. Santosh Hegde:

“23. Be that as it may, if the law laid down by this Court inT.T. Antony case1 is to be accepted as holding that a secondcomplaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion,such conclusion would lead to serious consequences. Thiswill be clear from the hypothetical example givenhereinbelow i.e. if in regard to a crime committed by thereal accused he takes the first opportunity to lodge a falsecomplaint and the same is registered by the jurisdictionalpolice then the aggrieved victim of such crime will beprecluded from lodging a complaint giving his version ofthe incident in question, consequently he will be deprivedof his legitimated right to bring the real accused to book.This cannot be the purport of the Code.

24. We have already noticed that in T.T. Antony case1 thisCourt did not consider the legal right of an aggrieved personto file counterclaim, on the contrary from the observationsfound in the said judgment it clearly indicates that filing acounter-complaint is permissible.

25. In the instant case, it is seen in regard to the incidentwhich took place on 20-5-1995, the appellant and the firstrespondent herein have lodged separate complaints givingdifferent versions but while the complaint of the respondentwas registered by the police concerned, the complaint of A

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672SUPREME COURT REPORTS

Athe appellant was not so registered, hence on his prayerthe learned Magistrate was justified in directing the policeconcerned to register a case and investigate the same andreport back. In our opinion, both the learned AdditionalSessions Judge and the High Court erred in coming to theconclusion that the same is hit by Section 161 or 162 of theBCode which, in our considered opinion, has absolutely nobearing on the question involved. Section 161 or 162 ofthe Code does not refer to registration of a case, it onlyspeaks of a statement to be recorded by the police in thecourse of the investigation and its evidentiary value.”

C30. The aforesaid principle was reiterated by this Court (TwoJudge Bench) in Surender Kaushik & Ors. vs. State of U.P. & Ors.,(2013) 5 SCC 148 in the following words:

“24. From the aforesaid decisions, it is quite luminous thatthe lodgment of two FIRs is not permissible in respect ofDone and the same incident. The concept of sameness hasbeen given a restricted meaning. It does not encompassfiling of a counter-FIR relating to the same or connectedcognizable offence. What is prohibited is any furthercomplaint by the same complainant and others against theEsame accused subsequent to the registration of the caseunder the Code, for an investigation in that regard wouldhave already commenced and allowing registration offurther complaint would amount to an improvement of thefacts mentioned in the original complaint. As is furthermade clear by the three-Judge Bench in Upkar Singh, theFprohibition does not cover the allegations made by theaccused in the first FIR alleging a different version of thesame incident. Thus, rival versions in respect of the sameincident do take different shapes and in that event, lodgmentof two FIRs is permissible.”

G31. Keeping the aforesaid principle of law in mind when weexamine the facts of the case at hand, we find that the second FIR filedby the appellant against respondent No.3 though related to the sameincident for which the first FIR was filed by respondent No.2 against theappellant, respondent No.3 and three Bank officials, yet the second FIR

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being in the nature of a counter-complaint against respondent No.3 waslegally maintainable and could be entertained for being tried on its merits.

32. In other words, there is no prohibition in law to file the secondFIR and once it is filed, such FIR is capable of being taken note of andtried on merits in accordance with law.

33. It is for the reasons that firstly, the second FIR was not filedby the same person, who had filed the first FIR. Had it been so, then thesituation would have been somewhat different. Such was not the casehere; Second, it was filed by the appellant as a counter-complaint againstrespondent No.3; Third, the first FIR was against five persons based onone set of allegations whereas the second FIR was based on theallegations different from the allegations made in the first FIR; and Lastly,the High Court while quashing the second FIR/charge-sheet did notexamine the issue arising in the case in the light of law laid down by thisCourt in two aforementioned decisions of this Court in the cases ofUpkar Singh (supra) and Surender Kaushik (supra) and simplyreferred three decisions of this Court mentioned above wherein this Courthas laid down general principle of law relating to exercise of inherentpowers under Section 482 of the Code.

34. In the light of the foregoing discussion and the four reasonsmentioned above, we are unable to agree with the reasoning and theconclusion of the High Court and are, therefore, inclined to set aside theimpugned order.

35. The Magistrate will now proceed to try and decide the caseon merits and while doing so, he will be free to examine all the issuesarising in the case from all the angles in the light of the evidence that willbe adduced by the parties.

36. If the Magistrate finds that the material brought on recordagainst any person(s) including the appellant herein in the evidenceindicating the involvement of any such person(s) in commission of thealleged offences, he will be free to proceed against any such person(s)in accordance with law and bring the proceedings to its logical enduninfluenced by any of our observations.

37. Let the trial before the concerned Magistrate be over, asdirected above, within a year as an outer limit.

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A38. With these observations and directions, the appeal succeedsand is accordingly allowed. Impugned order passed in Criminal M.CNo. 2641/2007 is set aside. As a result, C.C. No.2682 of 2002 on the fileof the JMFC-II, Ernakulum is restored to its file for being tried on meritsin accordance with law.

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Devika Gujral

Appeal allowed.

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