SHIV SHANKAR SINGHversusSTATE OF BIHAR & ANR.

                 (2011] 13 (ADDL.) S.C.R. 247


                    SHIV SHANKAR SINGH                                 A
                                 v.
                    STATE OF BIHAR & ANR.
               (Criminal Appeal No. 2160 of 2011)
                     NOVEMBER 22, 2011
                                                                       B
       [DR. B.S. CHAUHAN AND T.S. THAKUR, JJ.]

      CODE OF CRIMINAL PROCEDURE, 1973:

        Chapter XV - Second protest petition - Maintainability         c
  of - Magistrate taking cognizance and issuing summons -
  Held: The protest petition can always be treated as a
  complaint and proceeded with in terms of Chapter XV of
  Cr.P.C. - Therefore, in case there is no bar to entertain .a
  second complaint, in exceptional circumstances, the second
                                                                       0
  protest petition can also similarly be entertained - In the
  instant case, the High Court without taking note of the
  evidence referred to by the Magistrate, set aside his order on
  a technical ground that the second protest petition was not
 ·maintainable, without considering the fact that the first protest    E
  petition having been filed prior to filing of the Final Report was
  not competent - More so, the High Court without any
  justification made sweeping remarks against the Magistrate
, which remain unjustified and unwarranted in thefacts and
   circumstances of the case - The order of the High Court is
   set aside and that of the Magistrate restored - Strictures.         F
      F.l.R.

       Two FIRs in respect of the same incident - Held: Filing
 of another FIR in respect of the same incident having a               G
 different version of events is permissible.

      Two FIRs were registered in respect of an incident
 in which one 'GS', the nephew of the appellant, died in

                                 247                                   H
     248   SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R


 A the night of 6.12.2004 - one was lodged by the appellant
    on the same night stating that a dacoity was committed
    in his house and in the house of his brother, namely, 'KS',
    by respondent no. 2 and others wherein lots of valuable
    properties were looted and 'GS' was killed by the dacoits;
B and the another FIR was registered on 29.12.2004
    consequent upon a case filed by 'KS', the father of the
    deceased, u/s 156 (3) of the Code of Criminal Procedure,
    1973, stating that the appellant and his associates had
    killed 'GS', as the accused wanted to grab the immovable
C property. The appellant filed a Protest Petition on 4.4.2005;
    but no orders were passed thereon. The investigation in
   the FIR dated 6.12.2004 resulted in a Final Report u/s 173
   Cr.P.C filed by the police on 9.4.2005 to the effect that the
   case was totally false and 'GS' had been killed for
   property disputes. In regard to the other FIR, the police, I
D
   after completing the investigation, filed a charge-sheet for
   offences punishable u/ss 302, 302/34e 506 IPC etc. on
   29.8.2005 against the appellant and others. However, the
   trial stood concluded in favour of the accused persons
   therein. On 22.9.2005, the appellant filed a second Protest
E Petition in respecf of the Final Report dated 9.4.2005. The
   Magistrate, by order dated 2.8.2008, took cognizance and
   issued summons to respondent no. 2 and others. The
   criminal petition filed by respondent no. 2 for quashing
   the order dated 2.8.2008 was allowed by the High Court .
F on the ground that the second Protest Petition was not
   maintainable and the appellant ought to have pursued
   the first Protest Petition dated 4.4.2005.

        Allowing the appeal, the Court
G
        HELD: 1. Law does not prohibit registration and
    Investigation of two FIRs in respect of the same incident
    in case the versions are different The test of sameness
    has to be applied, otherwise there would not be cross
    cases and counter cases. Thus, filing another FIR In
H
SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR. 249

respect of the same Incident having a different version         A
of events is permissible. [para 6) [255-A-C]

    Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC
1791; Sudhir & Ors., v. State of M.P., 2001 ( 1 ) SCR 813  =
AIR 2001 SC 826; T. T. Antony v. State of Kera/a & Ors., 2001   8
(3) SCR 942 = AIR 2001 SC 2637; Upkar Singh v. Ved
Prakash & Ors., AIR 2004 SC 4320; and Babubhai v. State
                                       =
of Gujarat & Ors., 2010 (10) SCR 651 (2010) 12 SCC 254
- relied on

     Joy Krishna Chakraborty & Ors. v. The State &Anr., 1980    C
Crl. L.J. 482 - distinguished.

     2.1 An informant is the person interested in the result
of the investigation. In case the Magistrate takes a view
that there is no sufficient ground for proceeding further       o
and drops the proceedings, the informant would certainly
be prejudiced and, therefore, he has a right to be heard.
[para 9) [256-B-CJ
    Bhagwant Singh vs. Commissioner of Police & Anr. AIR
1985 SC 1285 - relied on.                                       E

    2.2 From the decisions of this Court, it is evident that
the law does not prohibit filing or entertaining of the
second complaint even on the same facts provided the
earlier complaint has been decided on the basis of              F
insufficient material or the order has been passed without
understanding the nature of the complaint or the
complete facts could not be placed before the court or
where the complainant came to know certain facts after
disposal of the first complaint which could have tilted the     G
balance in his favour. However, second complaint would
not be maintainable wherein the earlier complaint has
been disposed of on full consideration of the case of the
complainant on merit. [para 13) [257-F-G]
                                                                H
    250       SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A      BindeshwariPrasad Singh v. Kali Singh, 1977 ( 1 ) SCR
          =
  125 AIR 1977 SC 2432, Bhagwant Singh vs. Commissioner
  of Police & Anr. AIR 1985 SC 1285; Pramatha Nath Talukdar
  v. Saroj Ranjan Sarkar, 1962 Suppl. SCR 297 =AIR 1962
  SC 876 ; Mahesh Chand v. B. Janardhan Reddy & Anr., 2002
                            =
B ( 4 ) Suppl. SCR 566 AIR 2003 SC 702, Poonam Chand
                                                   =
  Jain & Anr v. Fazru, 2004 (5 ) Suppl. SCR 525 AIR 2005
  SC 38, Jatinder Singh & Ors. v. Ranjit Kaur, 2001 (1) SCR
          =
  707 AIR 2001 SC 784; Ranvir Singh v. State of Haryana,
  (2009) 9 sec 642
c       2.3 The Protest Petition can always be treated as a
  complaint and proceeded with in terms of Chapter XV of
  Cr.P.C. Therefore, in case there is no bar to entertain a
  second complaint on the same facts, in exceptional
  circumstances, the second Protest Petition can also
D similarly be entertained only under exceptional
  circumstances. In case the first Protest Petition has been
  filed without furnishing the full facts/particulars necessary
  to decide the case, and prior to its entertainment by the
  court, a fresh Protest Petition is filed giving full details,
E the same cannot be said to be not maintainable. [para 14)
  [258-A-B]

       2.4 Order dated 2.8.2008 passed by the Magistrate is
  based on the depositions made by the appellant and a
F very large number of witnesses. More so, the record of
  the Sessions Trial No. 866 of 2005, wherein the appellant
  himself has been put to trial was also summoned and
  examined by the Magistrate. The Magistrate held that
  there was material on record to proceed against the
G accused and a prima-facie case u/s 395 IPC was made
  out against all the accused persons of the case. He,
  therefore, directed to issue summons. But, the High
  Court without taking note of the said evidence, set a side
  the order of the Magistrate on a technical ground that the
  second Protest Petition was not maintainable, without
H
SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR. 251


considering the fact that the first Protest Petition having A
been filed prior to filing of the Final Report, was not
competent. More so, the High Court without any
justification made certain remarks. There was no
occasion for the High Court to make such sweeping
remarks against the Magistrate and the same remain B
unjustified and unwarranted in the facts and
circumstances of the case. The order of the High Court
is set aside and that of the Magistrate restored. [para 14
& 16] [258-A-H; 259-A·C]

                    Case Law Reference:                        c
    1980 Crl. L.J. 482      distinguished        para 3
    AIR 1979 SC 1791        relied on            para 6
    2001 (1) SCR 813        relied on            para 6        D
    2001 (3) SCR 942        relied on            para 6
    AIR 2004 SC 4320        relied on            para 6
    2010 (10) SCR 651       relied on            para 6
                                                               E
    AIR 1985 SC 1285         relied on           para 9
    1977 (1) SCR 125        relied on            para 10
    1962 Suppl. SCR 297 relied on                para 10
                                                               F
     2002 (4) Suppl. SCR 566       relied on     para 11
     2004 (5) Suppl. SCR 525       relied on     para 11
     2001 (1) SCR 707        relied on            para 12
     (2009) 9 sec 642        relied on            para 12      G

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2160 of 2011.
    From the Judgment & Order dated 06.05.2009 of the High
Court of Judicature at Patna in Cr. Misc. No. 36335 of 2008.   H
     252     SUPREME COURT REPORTS [2011] \3 (ADDL) S.C.R
                                                  '
 A         Gaurav Agrawal for the Appellant.

         Awanish Singh, Gopal Singh, Ravi Bhushan for the
     Respondents.

           The Judgment of the Court was delivered by
B
          DR. B.S. CHAUHAN, J. 1. This appeal has been
     preferred against the judgment and order dated 6.5.2009
     passed by the High Court of Judicature at Patna in Criminal
     Miscellaneous No. 36335 of 2008, by which the cognizance
c    taken by the Magistrate vide order dated 2.8.2008 against the
     respondent no.2 under Section 395 of the Indian Penal Code,
     1860 (hereinafter called 'IPC') has been quashed.

           2. Facts and circumstances giving rise to this case are
D that:
       A. A dacoity was committed in the house of present
   appellant Shivshankar Singh and his brother Kameshwar Singh
   on 6.12.2004 wherein Gopal Singh son oi Kameshwar Singh
   was killed by the dacoits and lots of valuable properties were
E looted. The police reached the place of occurrence at about
  3.00 AM i.e. about 2 hours after the occurrence. An FIR No.
   147/2004 dated 6.12.2004 was lodged by the appellant namely
  Ramakant Singh and Anand Kumar Singh alongwith 15 other
  persons under Sections 396/398 IPC.
F
       B. However, Kameshwar Singh, the real brother of the
  appellant and father of Gopal Singh, the deceased, approached
  the court by filing a case under Section 156 (3) of the Code of
  Criminal Procedure, 1973, (hereinafter called 'Cr.P.C.').
G Appropriate orders were passed therein in pursuance of which
  FIR No. 151/2004 was lodged on 29.12.2004 in respect of the
  same incident with the allegations that the present appellant,
  Bhola Singh, son of the second complainant and Shankar
  Thakur, the maternal uncle of Bhola Singh had killed Gopal
  Singh as the accused wanted to grab the immovable property.
H
SHiV SHANKAR SINGH v. STATE OF BIHAR & ANR. 253
           [DR. 8.S. CHAUHAN, J.)
     C. Investigation in pursuance of both the reports ensued.      A
When the investigation in pursuance of both the FIRs was
pending, the appellant filed Protest Petition on 4.4.2005, but
did not pursue the matter further. The court did not pass any
order on the said petition. After completing investigation in the
Report dated 6.12.2004, the police filed Final Report under         B
Section 173 Cr.P.C. on 9.4.2005 to the effect that the case was
totally false and Gopal Singh had been killed for property
disputes.

     D. After investigating the other FIR filed by Kameshwar
Singh, father of the deceased, charge-sheet was filed under C
Sections 302, 302/34, 506 IPC etc. on 29.8.2005 against the
appellant, Bhola Singh, son of complainant and others. The
matter stood concluded after trial in favour of the accused
persons therein.
                                                                D
     E. It was on 22.9.2005, the appellant filed a second
Protest Petition in respect of the Final Report dated 9.4.2005.
After considering the same and examining a very large number
of witnesses, the Magistrate took cognizance and issued
summons to respondent Anand Kumar Singh and others vide E
order dated 2.8.2008.
      F. Being aggrieved, the respondent Anand Kumar Singh
filed Criminal Miscellaneous No. 36335 of 2008 for quashing
the order dated 2.8.2008 which has been allowed by the High         F
Court on the ground that second Protest Petition was not
maintainable and the appellant ought to have pursued the first
Protest Petition dated 4.4.2005.

     Hence, this appeal.
                                                                    G
       3. Shri Gaurav Agrawal, learned counsel appearing for the
appellant has submitted that the High Court failed to appreciate
that the so-called first Protest Petition having been filed prior
to filing the Final Report was not maintainable and just has to
be ignored. The learned Magistrate rightly did not proceed on       H
    254    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A the basis of the said Protest Petition and it remained merely a
   document in the file. The second petition was the only Protest
   Petition which could be entertained as it had been filed
   subsequent to filing the Final Report. The High Court further
   committed an error observing that the Magistrate's order of
B summoning the respondent No.1 was vague and it was not clear
   as in which Protest Petition the order had been passed. More
   so, the facts of the case in Joy Krishna Chakraborty & Ors. v.
   The State & Anr., 1980 Crl. L.J. 482, decided by the Division
   Bench of the Calcutta High Court and solely relied by the High
c Court were distinguishable as in the said case the first Protest
  Petition had been entertained by the Magistrate and an order
  had been passed. Protest Petition is to be treated as a
  complaint and the law does not prohibit filing and entertaining
  of second complaint even on the same facts in certain
0 circumstances. Thus, the judgment and order impugned is liable
  to be set aside.
        4. On the contrary, Shri Awanish Sinha and Shri Gopal
   Singh, learned counsel appearing for the respondents have
   vehemently opposed the appeal contending that the second
E petition was not maintainable and the appellant ought to have
  pursued the first Protest Petition. The High Court has rightly
  observed that the order of the Magistrate summoning the
  respondent No.1 and others was totally vague. Even otherwise,
  as the appellant himself had faced the criminal trial in respect
F of the same incident, he cannot be held to be a competenV
  eligible person to file the Protest Petition. He had purposely
  lodged the false FIR promptly after committing the offence
  himself. Therefore, the facts of the case do not warrant any
  interference by this court and the appeal is liable to be
G dismissed.
        5. We have considered the rival submissions made by the
   learned counsel for the parties and perused the record.

      6. We do not find any force in the submission made on
H behalf of the respondents that as in respect of same incident
SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR. 255
           [DR. B.S. CHAUHAN, J.]
i.e. dacoity and murder of .Gopal Singh, the appellant himself         A
alongwith others is facing criminal trial, proceedings cannot be
initiated against the respondent No.1 at his behest as
registration of two FIRs in respect of the same incident is not
permissible in law. for the simple reason that law does not
prohibit registration and investigation of two Fl Rs in respect of     B
the same incident in case the versions are different. The test
 of sameness has to be applied otherwise there would not be
 cross cases and counter cases. Thus, filing another FIR in
 respect of the same incident having a different version of events
 is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.),         c
 AIR 1979 SC 1791; Sudhir & Ors., v. State of M.P., AIR 2001
 SC 826; T. T. Antony v. State of Kera/a & Ors., AIR 2001 SC
 2637; Upkar Singh v. Ved Prakash & Ors., AIR 2004 SC 4320;
 and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).

     7. Undoubtedly, the High Court has placed a very heavy            D
reliance on the judgment of the Calcutta High Court in Joy
Krishna Chakraborty & Ors. (supra), wherein the Protest
Petition dated 19.3.1976 was entertained by the Magistrate
issuing direction to the Officer-in-Charge of the Khanakul Police
Station under Section 156(3) Cr.P.C. to make the investigation         E
and submit the report to the court concerned by 10.4.1976. The
Officer-in-Charge of the said police station did not carry out any
investigation on the ground that the incident had occurred
outside the territorial jurisdiction of the said police station. The
second Protest Petition filed by the same complainant on               F
23.3.1976 was entertained by the learned Magistrate. In fact,
it was in this factual backdrop that the Calcutta High Court held
that the matter could have been proceeded with on the basis
of the first Protest Petition itself by the Magistrate and second
Protest Petition could not have been entertained.                      G

      8. The facts of the present case are completely
distinguishable. Therefore, the ratio of the said judgment has
no application in the facts of this case.

     9. In Bhagwant Singh v. Commissioner of Police & Anr.,            H
    256    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A AIR 1985 SC 1285, this Court dealt with an issue elaborately
   entertaining the writ petition and accepting the submission in
   regard to acceptance of the Final Report to the extent that if
   no case was made out by the Magistrate, it would be violative
  of principles of natural justice of the complainant and therefore
B before the Magistrate drops the proceedings the informant is
  required to be given hearing as the informant must know what
  is the result of the investigation initiated on the basis of first FIR.
  He is the person interested in the result of the investigation.
  Thus, in case the Magistrate takes a view that there is no
C sufficient ground for proceeding further and drops the
  proceedings, the informant would certainly be prejudiced and
  therefore, he has a right to be heard.

       10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977
  SC 2432, this Court held that the second complaint lies if there
D are some new facts or even on the previous facts if the special
  case is made out.

        Similarly, in Pramatha Nath Talukdar v. Saroj Ranjan
    Sarkar, AIR 1962 SC 876, this Court has held as under:
E
        "An order of dismissal under Section 203 of the Criminal
        Procedure Code, is, however, no bar to the entertainment
        of a second complaint on the same facts but it will be
        entertained only in exceptional circumstances e.g. where
        the previous order was passed on an incomplete record
F       or on a misunderstanding of the nature of the complaint
        or it was manifestly absurd, unjust or foolish or where new
        facts which could not. with reasonable diligence, have
        been brought on the record in the previous proceedings,
        have been adduced. It cannot be said to be in the interest
G       of justice that after a decision has been given against the
        complainant upon a full consideration of his case, he or
        any other person should be given another opportunity to
        have his complaint enquired into."

H       11. After considering the aforesaid judgment along with
SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR. 257
           [DR. B.S. CHAUHAN, J.]

various other judgments of this Court, in Mahesh Chand v. B.            A
Janardhan Reddy & Anr., AIR 2003 SC 702, this Court held
as under:

    " .. It is settled law that there is no statutory bar in filing a
    second complaint on the same facts. In a case where a               8
    previous complaint is dismissed without assigning any
    reasons, the Magistrate under Section 204 CrPC may take
    cognizance of an offence and issue process if there is
    sufficient ground for proceeding .... "

In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a C
similar view has been re-iterated by this Court.

     12. In Jatinder Singh & Ors. v. Ranjit Kaur, AIR 2001 SC
784, this Court held that dismissal of a complaint on the ground
of default was no bar for a fresh Complaint being filed on the          D
same facts.

     Similarly in Ranvir Singh v. State of Haryana, (2009) 9
SCC 642, this Court examined the issue in the backdrop of
facts that the complaint had been dismissed for the failure of
the complainant to put in the process fees for effecting service        E
and held that in such a fact- situation second complaint was
maintainable.

     13. Thus, it is evident that the law does not prohibit filing
or entertaining of the second complaint even on the same facts F
provided the earlier complaint has been decided on the basis
of insufficient material or the order has been passed without
understanding the nature of the complaint or the complete facts
could not be placed before the court or where the complainant
came to know certain facts after disposal of the first complaint G
which could have tilted the balance in his favour. However,
second complaint would not be maintainable wherein the
earlier complaint has been disposed of on full consideration of
the case of the complainant on merit.
                                                                        H
    258    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A        14. The Protest Petition can always be treated as a
   complaint and proceeded with in terms of Chapter XV of
   Cr.P.C. Therefore, in case there is no bar to entertain a second
  complaint on the same facts. in exceptional circumstances, the
  second Protest Petition can also similarly be entertained only
B under exceptional circumstances. In case the first Protest
  Petition has been filed without furnishing the full facts/particulars
  necessary to decide the case, and prior to its entertainment by
  the court, a fresh Protest Petition is filed giving full details, we
  fail to understand as to why it should not be maintainable.
c        15. The instant case is required to be decided in the light
    of the aforesaid settled legal propositions.

       Order dated 2.8.2008 passed by the Magistrate
   concerned is based on the depositions made by the appellant-
D Shivshankar Singh, and a very large number of witnesses,
   namely, Sonu Kumar Singh, Suman Devi, Nirmala Devi,
   Ganesh Kumar, Udai Kumar Ravi, Rain Achal Singh, Jateshwar
   Acharya, Neeraj Kumar Singh, Krishna Devi and Dr. Narendra
   Kumar. More so, the record of the Sessions Trial No. 866 of
E 2005, wherein the appellant himself has been put to trial was
  also summoned and examined by the learned Magistrate. Thus,
  the Magistrate further took note of the fact that for the same
  incident, trial was pending in another court. After appreciating
  the evidence of the complainant and other witnesses deposed
F in the enquiry, the learned Magistrate passed the following
  order :

        "On the basis of aforesaid discussion, I find that there are
        materials available on the record to proceed against the ·
        accused person. A prima-facie case under Section 395
G       IPC has been made out against all the accused person of
        this case. Ole is directed to issue summons on filing of the
        requisite. Put up the record on .13.8.2008 for filing of the
        requisites."

H       16. The High Court without taking note of the aforesaid
SHIV SHANKAR SINGH v. STATE OF BIHAR & ANR. 259
           [DR. S.S. CHAUHAN, J.]
evidence set side the order of the Magistrate on a technical          A
ground that the second Protest Petition was not maintainable
without considering the fact that the first Protest Petition having
been filed prior to filing of the Final Report was not competent.
More so, the High Court without any justification made the
following remarks:                                                    B

     "The Court can only record that the learned Judicial
     Magistrate has not conducted himself in a fair manner
     because he has intentionally left the impugned order vague
     as to which protest petition he was acting upon, so that         C
     advantage may accrue to Opposite Party No.2."

     17. In our opinion, there was no occasion for the High Court
to make such sweeping remarks against the Magistrate and
the same remain unjustified and unwarranted in the facts and
circumstances of the case.                                            D

     18. In view of the above, the appeal succeeds and is
allowed. The order impugned of the High Court is set aside and
the order of the Magistrate is restored. Respondent No.1 is
directed to appear before the Magistrate on 1.12.2011 and the         E
learned Magistrate is requested to proceed in accordance with
law. However, we clarify that any observation made in this
judgment shall not adversely prejudice the cause of the
respondent to seek any further relief permissible in law as the
said observations have been made only to decide the
                                                                      F
 controversy involved herein.

 R.P.                                             Appeal allowed.