P. SREEKUMARversusSTATE OF KERALA & ORS.

                       [2018] 3 S.C.R. 665                              665


                         P. SREEKUMAR                                   A
                                 v.
                  STATE OF KERALA & ORS.
                 (Criminal Appeal No. 408 of 2018)
                          MARCH 19, 2018                                B
   [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]


         Code of Criminal Procedure, 1973: s.482 – Two FIRs filed
in relation to the same offence and against the same accused –          C
Whether the subsequent FIR was liable to be quashed – In the instant
case, appellant was Chief Executive Trustee of a Trust and respondent
no.2 was one of the trustees and respondent no.3 was treasurer of
the Trust – Respondent no.2 filed a complaint against the appellant,
respondent no.3 and three bank officials alleging that they conspired
together to defraud the Trust and siphoned off around Rs.42 lacs        D
of the Trust – FIR was registered – Subsequently, appellant also
filed an FIR against respondent no.3 alleging fraud and forgery –
Appellant failed in seeking quashing of proceedings pending against
him – However, respondent no.3 successfully moved application
for quashing of FIR filed against him by appellant on the ground        E
that he cannot be made to face two trials on the same set of facts
and for same offences in two different courts – Hence appeal –
Held: The second FIR filed by the appellant against respondent
No.3 though related to the same incident for which the first FIR was
filed by respondent No.2 against the appellant, respondent No.3
and the three Bank officials, yet the second FIR was legally            F
maintainable and could be entertained for being tried on its merits
firstly since the second FIR was not filed by the same person, who
had filed the first FIR, secondly it was filed by the appellant as a
counter-complaint against respondent No.3 and thirdly the first FIR
was against five persons based on one set of allegations whereas        G
the second FIR was based on the allegations different from the
allegations made in the first FIR – Trial against respondent no.3
restored to its file for being tried on merits in accordance
with law.

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                                 665
666            SUPREME COURT REPORTS                      [2018] 3 S.C.R.


A           Allowing the appeal, the Court
             HELD : There is no prohibition in law to file the second
      FIR and once it is filed, such FIR is capable of being taken note
      of and tried on merits in accordance with law. The second FIR
      filed by the appellant against respondent No.3 though related to
B     the same incident for which the first FIR was filed by respondent
      No.2 against the appellant, respondent No.3 and three Bank
      officials, yet the second FIR being in the nature of a counter-
      complaint against respondent No.3 was legally maintainable and
      could be entertained for being tried on its merits. It is for the
      reasons that firstly, the second FIR was not filed by the same
C     person, who had filed the first FIR. Had it been so, then the
      situation would have been somewhat different. Such was not the
      case here; Second, it was filed by the appellant as a counter-
      complaint against respondent No.3; Third, the first FIR was
      against five persons based on one set of allegations whereas the
D     second FIR was based on the allegations different from the
      allegations made in the first FIR. The Magistrate will now proceed
      to try and decide the case on merits and while doing so, he will
      be free to examine all the issues arising in the case from all the
      angles in the light of the evidence that will be adduced by the
      parties. If the Magistrate finds that the material brought on record
E     against any person(s) including the appellant herein in the
      evidence indicating the involvement of any such person(s) in
      commission of the alleged offences, he will be free to proceed
      against any such person(s) in accordance with law and bring the
      proceedings to its logical end uninfluenced by any of our
F     observations. [Paras 31, 32, 33, 35, 36] [672-G-H; 673-A-C,
      F-G]
            Upkar Singh v. Ved Prakash & Ors. (2004) 13 SCC
            292 ; Surender Kaushik & Ors. v. State of U.P. & Ors.
            (2013) 5 SCC 148 : [2013] 1 SCR 1053 – relied on.
G           State of Haryana & Ors. v. Bhajanlal (1992) 1 Suppl.
            SCC 335 : [1990] 3 Suppl. SCR 259 ; Madhu Limaye
            v. State of Maharashtra (1977) 4 SCC 551 :
            [1978] 1 SCR 749 ; R.P. Kapur v. State of Punjab
            AIR 1960 SC 866 : [1960] SCR 388 – referred to.
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         P. SREEKUMAR v. STATE OF KERALA & ORS.                                667


                         Case Law Reference                                    A
      [1990] 3 Suppl. SCR 259           referred to          Para 26
      [1978] 1 SCR 749                 referred to           Para 26
      [1960] SCR 388                   referred to           Para 26
      (2004) 13 SCC 292                relied on             Para 28           B
      [2013] 1 SCR 1053                relied on             Para 30
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 408 of 2018.
      From the Judgment and Order dated 27.05.2014 of the High Court           C
of Kerala at Ernakulam in CRL. MC. No. 2641 of 2007.
     Jayant Bhushan, Sr. Adv., Manoj V. George, Ms. Shilpa Liza
George,Towseef Ahmad Dar, Kamlendra Mishra, Advs. for the Appellant.
      Respondent-in-person.
                                                                               D
      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 order
dated 27.05.2014 passed by the High Court of Kerala at Ernakulum in
Criminal M.C. No.2641 of 2007 whereby the High Court allowed the               E
petition filed by the accused-respondent No.3 herein and quashed the
FIR(Annexure II), charge-sheet(Annexure III) and all consequent
proceedings arising therefrom pending as C.C. No.2682 of 2002 on the
file of the JFCM-II, Ernakulum.
       3. Facts involved in the case lie in a narrow compass so also the       F
issue involved in the appeal is a short one. The facts are mentioned
hereinbelow:
      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 the               G
educational activities and runs educational institutions in the State of
Kerala.
      5. The appellant herein is one of the Chief Executive Trustees of
the Trust whereas respondent No.2 herein is one of the Trustees and
respondent No.3 was a Treasurer of the Trust at the relevant time.             H
668            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A          6. On 17.10.2001, respondent No.2 (Trustee) filed a private
      complaint against the appellant, respondent No.3 (Treasurer) and three
      Bank officials of the Bank in the Court of Chief Judicial Magistrate,
      Ernakulum (CC No.15877 of 2001) under Section 200 of the Code of
      Criminal Procedure, 1973 (Annexure-P-14).
B           7. In the complaint, it was inter alia alleged that the appellant,
      respondent No.3 and three bank officials conspired together to defraud
      the Trust and to give effect to their conspiracy managed to siphon off
      around Rs.42 lacs of the Trust from its Bank accounts by manipulation
      and forging the accounts books and several documents of the Trust.
C           8. Pursuant to the aforesaid complaint, an FIR in Crime Case
      No.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 the
      appellant, respondent No.3 and three bank officials were named as
D     accused persons in relation to commission of the alleged crime.
            9. The aforesaid incident also led to filing of the FIR No.5 of 2002
      by the appellant (Chief Executive Trustee) against respondent No.3
      (Treasurer of the Trust) in North Police Station, Ernakulum under Sections
      406, 409, 465, 467 and 471 of IPC. It was inter alia alleged therein that
E     respondent No.3 was the person, who indulged into the fraud and forgery
      and he managed to take away the money belonging to the Trust by
      misusing his post. Pursuant to this FIR, respondent No.3 (Treasurer of
      the Trust) was arrested and later enlarged on bail.
             10. Thereafter, the police made investigation in relation to FIR
F     No.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 Complaint
      Case No.15877 of 2001 is concerned, it was registered against the
      appellant, respondent No.3 and three Bank officials for commission of
G     the offences punishable under Section 408, 409, 420, 467, 468, 473, 477
      read with Section 34 of IPC. The police made investigation in this case
      and filed their final report on 06.02.2003 stating therein that no case was
      made out against appellant and three bank officials (described in the
      report 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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         P. SREEKUMAR v. STATE OF KERALA & ORS.                                669
                [ABHAY MANOHAR SAPRE, J.]

       12. Respondent No. 2, i.e., the Trustee, however, felt aggrieved        A
by the final report dated 06.02.2003, filed a protest petition (CC No. 28
of 2004) before the Chief Judicial Magistrate, Ernakulum and prayed
therein for taking cognizance of the offences mentioned in the final report.
The Chief Judicial Magistrate issued summons to the appellant and
respondent No.3 to appear before the Court on 22.07.2004.
                                                                               B
       13. Respondent No.3 filed a Criminal M.C. No.2641 of 2007
before the High Court of Kerala seeking to quash the final report filed in
Crime Case No.5 of 2002 pending in the Court of JMFC II at the instance
of the appellant against him.
       14. In his application, respondent No.3, in substance, contended        C
that he cannot be made to face two trials on the same set of facts and
for the same offences in two different Courts. He, therefore, prayed
that so far as Crime Case No.5/2002 filed by the appellant against him
and the charge-sheet filed therein are concerned, the same are liable to
be quashed.
                                                                               D
      15. In the meantime, two Criminal Misc. Applications under Section
482 of the Code were filed in the High Court of Kerala being Criminal
M.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 was
filed by the appellant herein wherein he sought quashing of the                E
proceedings pending against him in the Court of Judicial First Class
Magistrate Court II, Ernakulum (Crime Case No.5 of 2002) in relation
to Complaint Case No.2682 of 2002.
       17. So far as Criminal M.C. No.2641 of 2007 is concerned, it was
filed by respondent No.3 against the appellant challenging the FIR/charge-     F
sheet filed against him by the appellant (C.C. No.2682 of 2002) in the
Court of JMFC-II, Ernakulum.
       18. By impugned order, the Single Judge of the High Court
dismissed the Criminal M.C. No.1732/2004, which was filed by the
appellant, and declined to quash the proceedings challenged therein. It
                                                                               G
was observed by the Single Judge, “it is not possible to quash the complaint
at this stage”.
      19. So far as the Criminal M.C. No.2641/2007 is concerned, the
Single Judge, by the same impugned order, allowed the said Criminal
M.C. and quashed the FIR and the charge-sheet filed pursuant thereto.
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670            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A           20. The appellant, felt aggrieved by the dismissal of his petition
      (Criminal M.C. No.1732/2004) by the High Court, filed two SLPs being
      SLP(Crl.) No.6319/2014 and the present SLP in this Court against the
      order by which the High Court had quashed the FIR/charge-sheet filed
      against respondent No.3 and had allowed Criminal M.C. Application
      2641 of 2007.
B
            21. This Court, on 06.03.2018, dismissed the appellant’s SLP
      No.6319/2014 as having become infructuous because during its pendency,
      the appellant and other three bank officials were discharged by the
      competent Court from the case. The appellant, therefore, did not pursue
      the SLP.
C
             22. With these background facts, the question for consideration in
      this appeal is as to whether the High Court (Single Judge) was justified
      in allowing the Criminal M.C. No.2641/2007 filed by respondent No.3
      and thereby was justified in quashing the FIR/charge-sheet filed against
D     respondent No.3 and all consequential proceedings arising out of the
      FIR/charge-sheet pending as C.C. No.2682 of 2002 on the file of
      JMFC-II, Ernakulum.
            23. Heard Mr. Jayant Bhushan, learned senior counsel for the
      appellant, Ms. Liz Mathew, learned counsel for respondent No.1 and
E     respondent No.2, who appeared in person.
            24. Having heard the learned counsel for the appellant and
      respondent No.2, who appeared in person, we are inclined to allow the
      appeal and set aside the impugned order passed in Cri. M.C.No. 2641 of
      2007.
F
            25. The question, which fell for consideration before the High
      Court, was that if two FIRs are filed in relation to the same offence and
      against the same accused, whether the subsequent FIR was liable to be
      quashed or not.
            26. The Single Judge placed reliance on three decisions of this
G
      Court 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 866
      and quashed the second FIR/charge-sheet under Section 482 of
      the Code.
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        P. SREEKUMAR v. STATE OF KERALA & ORS.                             671
               [ABHAY MANOHAR SAPRE, J.]

      27. In our view, the High Court had committed jurisdictional error   A
in quashing the subsequent FIR/charge-sheet, which was filed at the
instance of the appellant against respondent No.3 without adverting to
the law on the subject.
       28. In our opinion, the law on the subject which governs the
controversy involved in the appeal is no more res integra and settled by   B
the decision of this Court (three-Judge Bench) in the case reported in
Upkar Singh vs. Ved Prakash & Ors., (2004) 13 SCC 292 and also
by the subsequent decisions.
      29. Their Lordships after examining all the previous case laws on
the subject laid down the following proposition of law in the following    C
words speaking through Justice N. Santosh Hegde:
      “23. Be that as it may, if the law laid down by this Court in
      T.T. Antony case1 is to be accepted as holding that a second
      complaint in regard to the same incident filed as a counter-
      complaint is prohibited under the Code then, in our opinion,         D
      such conclusion would lead to serious consequences. This
      will be clear from the hypothetical example given
      hereinbelow i.e. if in regard to a crime committed by the
      real accused he takes the first opportunity to lodge a false
      complaint and the same is registered by the jurisdictional
      police then the aggrieved victim of such crime will be               E
      precluded from lodging a complaint giving his version of
      the incident in question, consequently he will be deprived
      of 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 this           F
      Court did not consider the legal right of an aggrieved person
      to file counterclaim, on the contrary from the observations
      found in the said judgment it clearly indicates that filing a
      counter-complaint is permissible.
      25. In the instant case, it is seen in regard to the incident        G
      which took place on 20-5-1995, the appellant and the first
      respondent herein have lodged separate complaints giving
      different versions but while the complaint of the respondent
      was registered by the police concerned, the complaint of
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672            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A           the appellant was not so registered, hence on his prayer
            the learned Magistrate was justified in directing the police
            concerned to register a case and investigate the same and
            report back. In our opinion, both the learned Additional
            Sessions Judge and the High Court erred in coming to the
            conclusion that the same is hit by Section 161 or 162 of the
B
            Code which, in our considered opinion, has absolutely no
            bearing on the question involved. Section 161 or 162 of
            the Code does not refer to registration of a case, it only
            speaks of a statement to be recorded by the police in the
            course of the investigation and its evidentiary value.”
C           30. The aforesaid principle was reiterated by this Court (Two
      Judge 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 that
            the lodgment of two FIRs is not permissible in respect of
D           one and the same incident. The concept of sameness has
            been given a restricted meaning. It does not encompass
            filing of a counter-FIR relating to the same or connected
            cognizable offence. What is prohibited is any further
            complaint by the same complainant and others against the
E           same accused subsequent to the registration of the case
            under the Code, for an investigation in that regard would
            have already commenced and allowing registration of
            further complaint would amount to an improvement of the
            facts mentioned in the original complaint. As is further
            made clear by the three-Judge Bench in Upkar Singh, the
F           prohibition does not cover the allegations made by the
            accused in the first FIR alleging a different version of the
            same incident. Thus, rival versions in respect of the same
            incident do take different shapes and in that event, lodgment
            of two FIRs is permissible.”
G           31. Keeping the aforesaid principle of law in mind when we
      examine the facts of the case at hand, we find that the second FIR filed
      by the appellant against respondent No.3 though related to the same
      incident for which the first FIR was filed by respondent No.2 against the
      appellant, respondent No.3 and three Bank officials, yet the second FIR
H
         P. SREEKUMAR v. STATE OF KERALA & ORS.                                  673
                [ABHAY MANOHAR SAPRE, J.]

being in the nature of a counter-complaint against respondent No.3 was           A
legally maintainable and could be entertained for being tried on its merits.
       32. In other words, there is no prohibition in law to file the second
FIR and once it is filed, such FIR is capable of being taken note of and
tried on merits in accordance with law.
       33. It is for the reasons that firstly, the second FIR was not filed      B
by the same person, who had filed the first FIR. Had it been so, then the
situation would have been somewhat different. Such was not the case
here; Second, it was filed by the appellant as a counter-complaint against
respondent No.3; Third, the first FIR was against five persons based on
one set of allegations whereas the second FIR was based on the                   C
allegations different from the allegations made in the first FIR; and Lastly,
the High Court while quashing the second FIR/charge-sheet did not
examine the issue arising in the case in the light of law laid down by this
Court in two aforementioned decisions of this Court in the cases of
Upkar Singh (supra) and Surender Kaushik (supra) and simply
referred three decisions of this Court mentioned above wherein this Court        D
has laid down general principle of law relating to exercise of inherent
powers under Section 482 of the Code.
      34. In the light of the foregoing discussion and the four reasons
mentioned above, we are unable to agree with the reasoning and the
conclusion of the High Court and are, therefore, inclined to set aside the       E
impugned order.
       35. The Magistrate will now proceed to try and decide the case
on merits and while doing so, he will be free to examine all the issues
arising in the case from all the angles in the light of the evidence that will
be adduced by the parties.                                                       F
      36. If the Magistrate finds that the material brought on record
against any person(s) including the appellant herein in the evidence
indicating the involvement of any such person(s) in commission of the
alleged offences, he will be free to proceed against any such person(s)
in accordance with law and bring the proceedings to its logical end              G
uninfluenced by any of our observations.
       37. Let the trial before the concerned Magistrate be over, as
directed above, within a year as an outer limit.

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674             SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A            38. With these observations and directions, the appeal succeeds
      and is accordingly allowed. Impugned order passed in Criminal M.C
      No. 2641/2007 is set aside. As a result, C.C. No.2682 of 2002 on the file
      of the JMFC-II, Ernakulum is restored to its file for being tried on merits
      in accordance with law.
B
      Devika Gujral                                               Appeal allowed.




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