RAM NATH Vs. STATE OF U P

JUDGEMENT

(1.) POONAM Srivastava, J. Heard Sri Rajiv Lochan Shukla, Sri Rajeev Pandey, Advocates appearing for the petitioner and learned A. G. A. for the State.

(2.) THE private respondents previously arrayed as respondent Nos. 4, 5, 6 and 7 have been deleted by the Counsel for the petitioner with the permission of the Court on 1-3-2007. Memo of appearance of Sri Punit Kumar Gupta, Advocate on behalf of the deleted respondents has not been accepted by the Court. He made a request to appear as intervenor, which is also refused. 3 THE order dated 15-2-2007 passed by the Special Judge (D. A. A.), Jhansi in Criminal Revision No. 48 of 2007, Ram Nath v. Vinod Kumar and Ors. is impugned in the instant writ petition. 4. THE petitioner's son Monipal was killed alongwith two others Manoj and Vimal. Two other persons namely Deep Chand and Ram Babu Tiwari sustained injuries in the aforesaid incident. Vinod Kumar Shrotia lodged First Information Report on 17-12-2006 regarding aforesaid incident, which was registered at Case Crime No. 1317 of 2006 under Sections 147, 148, 149, 394, 302 and 307, I. P. C. read with Section 7 Criminal Law Amendment Act. THE accused named in the said F. I. R. are Lekhraj Yadav son of Manpoot Singh Yadav, Jai Hind and Bhagat Singh sons of Lekhraj, Ram Swaroop and Mahendra sons of Lakhan Yadav, Veer Singh son of Gajraj Singh Yadav and Sanu son of Khagai Kushwaha alongwith five and six unknown persons. 5. THE petitioner approached the concerned police station Mau Ranipur, District Jhansi bringing to the notice that the complainant Vinod Kumar Shroia has given distorted version with an intention to shield the real assailants, who had participated in the murder. First Information Report registered on 17-12- 2006 failed to mention name of real culprits, on the basis of which investigation is continuing, but the police did not pay any heed to the request of the petitioner. THE petitioner claims himself to be an eye- witness, but in spite of it his efforts were completely overlooked. Finally, an application under Section 156 (3), Cr. P. C. was preferred against four accused namely Vinod Kumar Shrotia son of Raja Ram, Tinku Saider son of Shanker Lal, Prateek alias Tinku son of Bhagwan Das, Anoop son of Akhilesh Gupta and five unknown persons. It was specifically brought to the notice of the Court that the petitioner's son was working for Manoj Shrotia brother of Vinod Kumar Shrotia, both brothers were not on good term on account of certain family partition. THE deceased Manoj claimed his share, which irked Vinod Kumar Shrotia and with a view to eliminate him, murder was committed. THE learned Special Judge refused to direct the police to investigate counter version brought to his notice by means of an application under Section 156 (3), Cr. P. C. 6. Learned Counsel for the petitioner has challenged the said order. Grievance of the petitioner is that while rejecting the application, the Court below invited objection of the proposed accused and heard their argument. Counsel for the proposed accused was allowed to advance a detailed arguments, which was objected by the petitioner. 7. Reliance has been placed on a decision of this Court in Criminal Revision No. 5729 of 2006, Chandan v. State of U. P. and Anr. , wherein this Court held that passing of an order under Section 156 (3), Cr. P. C, the Magistrate only directs for registration and investigation of the case and the accused has no right to challenge the aforesaid order. Similar view was expressed in the case of Hari Raj Singh v. State of U. P. and Ors. , 2003 (2) JIC 153 (SC) : 2003 (46) ACC 1180, wherein this Court depreciated practice of the Magistrate inviting objection and hearing the alleged offender and this practice was held to be unsustainable and contrary to law. In the case of Brijesh v. State of U. P. and Ors. , 1997 JIC 357 (All) : 1997 (34) ACC 687, Father Thomas v. State of U. P. and Anr. , 2002 (1) JIC 415 (All) : 2002 (44) ACC 143, it is settled that stage of Section 156 (3), Cr. P. C. is pre-cognizance and the opposite party arrayed is only proposed accused, character of being an accused will be planted on a person only after registration of the F. I. R. and Magistrate takes cognizance and summons the accused. In the case of Kekoo J. Manechji v. Union of India and Ors. , 1980 Crlj 258, it has been held that: "this is admittedly a stage where prosecuting agency is still investigating an offence and collecting evidence against the accused, the petitioner, who is accused, has, therefore, no locus standi at this stage to question the manner in which evidence should be collected. 8. THE reluctance of the Magistrate to direct for registration of the F. I. R. in the instant case is basically on the principle laid down by the Apex Court T. T. Antony v. State of Kerala, 2001 (2) JIC 818 (SC) : AIR 2001 SC 2637. THE Apex Court was of the view that it would be beyond purview of Sections 154 and 156, Cr. P. C. to issue a direction for registering successive F. I. R. of the same incident, same allegations but it was not a case where it required afresh investigation on the successive F. I. R. not being a counter case. 9. 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) in a subsequent decision Upkar Singh v. Ved Prakash and Ors. , 2005 (1) JIC 109 (SC) : 2004, Crlj 4219. For ready perusal, paragraph Nos. 15 and 16 of the case of Upkar Singh (supra) are quoted herein below : "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 1st complaint or on his behalf alleging a different version of the said incident. " 10. THE Apex Court, while interpreting law in the case of T. T. Antony deciding the case of Upkar Singh (supra), placed reliance on another decision Kari Choudhary v. Mst. Sita Devi and Ors. , 2002 (1) JIC 248 (SC) : 2001 (Suppl.) ACC 689 (SC ). THE view expressed by Hon'ble Supreme Court is absolutely clear that the provision of the Code does not take away jurisdiction of the Magistrate under Section 156 (3), Cr. P. C. even after submission of a report by the Investigating Officer to direct for registering a counter case in respect of the same occurrence. If the case of T. T. Antony was to be accepted as holding second complaint or counter case regarding the same incident to be prohibited then such a conclusion would lead to serious consequences. THE Apex Court neither considered nor expressed its view regarding legal right of the aggrieved person to file a counter case in given fact of the circumstances, where First Information Report, first in time was lodged against some persons as a result of conspiracy to shield the actual offender. When application under Section 156 (3), Cr. P. C. is moved before the Magistrate setting up a counter case, it is the bounden duty of the Magistrate to examine the allegation and come to a conclusion instead of adopting a hyper-technical view that the jurisdiction to examine different version is completely lacking and hit by Sections 161 and 162 of the Code. Facts of the case of T. T. Antony was somewhat absolutely different and, therefore, it cannot be treated laying down a complete bar for institution of a rival version bringing to book the actual accused, who appear to be involved in the crime. Paragraph No. 19 of decision of Upkar Singh (supra) is quoted below : "19. This clearly shows that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. " 11. For the reasons discussed above, the judgment and order dated 15-2-2007 passed by the Special Judge (D. A. A.), Jhansi appears to be on wrong interpretation of decision in the case of T. T. Antony (supra) is not sustainable in law and is quashed. THE matter is remanded to the concerned Magistrate to pass afresh order after taking entire aspect into consideration, and giving an opportunity of hearing to the petitioner within a period of three weeks from the date a certified copy of this order is produced before him. 12. With the aforesaid direction, the writ petition is disposed of. Petition disposed of. .