Sanjeev Sirohi
Published on: 14 February 2023 at 22:45 IST
It would be of immense significance to note that none other than the Jammu and Kashmir High Court while ruling on a very significant legal point has in an extremely learned, laudable, landmark, logical and latest judgment titled Abdul Rashid vs Union Territory of J&K and others CRM(M) No. 238/202 that was reserved on December 26, 2022 and then finally pronounced on February 10, 2023 has reiterated point blank that there cannot be two FIRs with regard to the same occurrence but in case of two different versions on part of rival parties with regard to the same occurrence, registration of cross FIRs is permissible.
It must be mentioned here that the observations were made by the Single Judge Bench of Hon’ble Mr Justice Rajnesh Oswal while hearing a plea challenging an order that was passed by Judicial Magistrate of Kishtwar observing that there cannot be two FIRs for the same cause/occurrence except counter FIRs and the grievance of the petitioner by no stretch of imagination is justified as the FIR is already in place and investigation is going on.
The Bench unequivocally underscored stating that, “It cannot be said that in the instant case, the registration of FIR on the application of the petitioner would amount to registration of second FIR regarding same offence. Rather this Court is of the considered view that the same would be a cross FIR and the registration of the same, is not impermissible under law.”
Hence we saw how so very rightly the Bench set aside the observations made by the Magistrate in his order and directed SHO Kishtwar to register an FIR under relevant provisions of law against the respondent Nos. 5 and 6.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rajnesh Oswal sets the ball rolling by first and foremost putting forth in para 1 that, “The petitioner had filed an application on 14.01.2021 under section 156(3) Code of Criminal Procedure(CrPC) for registration of FIR under sections 323, 341, 420, 409, 452, 506 and 109 IPC read with section 3/25 Arms Act against the respondent Nos. 3 to 6 before the Court of Duty Magistrate, Kishtwar and the learned Munsiff JMIC, Kishtwar vide order dated 14.01.2021 after recording its satisfaction that the complaint reveals the commission of cognizable offences, forwarded the complaint under section 156(3) Cr.P.C. to SHO, Kishtwar to register the FIR under relevant provisions of law,”.
“As the SHO concerned did not comply the order passed by the learned Magistrate, the petitioner filed an application for initiation of contempt proceedings against the SHO Police Station, Kishtwar, respondent No. 2 herein and simultaneously, a prayer was also made for directing the SHO to submit the status report.”
As it turned out, the Bench enunciates in para 2 that, “Notice was issued to respondent No. 2 in the aforesaid contempt petition and the respondent No. 2 filed the status report wherein it was stated that one FIR stands already registered prior to the filing of the complaint by the petitioner under section 156(3) Cr.P.C. and in the said FIR, the son of the complainant, namely, Suhail Ahmed was the accused.”
To recapitulate, the Bench then discloses in para 3 that, “The learned Munsiff (JMIC), Kishtwar vide order dated 09.02.2021, dropped the contempt proceedings with the observations that there cannot be two FIRs for the same cause/occurrence except counter FIRs and the grievance of the petitioner by no stretch of imagination is justified as the FIR is already in place and investigation is going on.”
Quite ostensibly, the Bench then mentions in para 4 that, “The petitioner has assailed the order dated 09.02.2021 on the ground that the learned Magistrate has failed to appreciate that the allegations levelled by the petitioner are altogether different vis-a-vis the FIR 11/2021 dated 10.01.2021 registered against the son of the petitioner in which the complainant is Ashiq Hussain-respondent No. 5 herein.”
Further, the Bench reveals in para 5 that, “Status report has been filed by the respondent No. 1 in which it has been stated that FIR bearing No. 11/2021 was registered against the son of the petitioner and investigation in the said FIR has been finalized as challan and the son of the petitioner along with others figures as an accused in the said challan.”
Needless to say, the Bench then states in para 9 that, “Heard and perused the record.”
Most significantly, the Bench while citing the relevant case law then mandates in para 10 stating that, “It is settled law that there cannot be two FIRs with regard to the same occurrence but there may be different versions of two parties with regard to the same occurrence and in such type of cases, registration of cross FIRs is permissible. Reliance is placed upon the judgment of the Apex Court in Surender Kaushik v. State of U.P., (2013) 5 SCC 148 wherein it has been held as under:
From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of 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 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 [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292], the 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.”
To put things in perspective, the Bench then envisages in para 11 that, “So far as the instant case is concerned, it is borne from the record that pursuant to the complaint filed by respondent No. 5, FIR bearing No. 11/2021 for commission of offences under sections 447, 147 and 323 IPC has been registered against the five accused including the son and wife of the petitioner after they allegedly and illegally trespassed in the land of respondent No. 5 and assaulted him as well as his wife,”.
“The time of occurrence has been shown as 0830 hours. In the complaint filed by the petitioner it is alleged that the respondent Nos. 5 and 6 on 10.01.2021 at 6.00 a.m. armed with sharp edged weapons i.e. axe forcefully trespassed into the land of the petitioner and started cutting trees and binding wire fence on the disputed land,”.
“When the petitioner heard the noise of the cutting trees, he woke up and rushed towards the spot along with his son, namely, Amir Suhail,”.
“The respondent Nos. 5 and 6 started shouting by using filthy and unparliamentary language and caught hold of his son and started beating him mercilessly and respondent Nos. 5 and 6 told the petitioner that they had been directed to get the possession of the land forcefully and illegally by respondent Nos. 3 and 4,”.
“Though there were no allegations regarding commission of any offence by respondent Nos. 3 and 4 who were posted as Naib Tehsildar, Kishtwar and Patwari Halqa Pochhal respectively, but still the Magistrate directed the registration of FIR against the respondent Nos. 3 and 4.”
Do note, the Bench then observes in para 12 that, “Be that as it may, the course adopted by the learned Magistrate while dropping the contempt proceedings vide order dated 09.02.2021 with the observation that FIR is already in place and investigation is going on, is not correct,”.
“As already observed above, there may be one version of the complainant and the other by the accused and in such type of situation, the registration of cross FIR is permissible as already observed.”
As a corollary, the Bench then most remarkably hastens to add in para 13 holding that, “In view of the above, it cannot be said that in the instant case, the registration of FIR on the application of the petitioner would amount to registration of second FIR regarding same offence. Rather this Court is of the considered view that the same would be a cross FIR and the registration of the same, is not impermissible under law.”
Most analytically, the Bench after considering everything then holds in para 14 that, “Viewed thus, this Court deems it appropriate to set aside the observations made by the learned Magistrate in the order dated 09.02.2021 that the grievance of the petitioner cannot be considered as justified as FIR was already registered. SHO, P/S Kishtwar is directed to register FIR under relevant provisions of law against the respondent Nos. 5 and 6 only.
Needless to say that this Court has not made any observation with regard to the correctness of the allegations levelled by the petitioner and it shall be the sole prerogative of the Investigating Officer concerned to arrive at any conclusion after the completion of investigation.”
Finally, the Bench concludes by holding in para 15 that, “Disposed of.”
In a nutshell, the Jammu and Kashmir and Ladakh High Court has made it abundantly clear that cross FIRs are permissible in case of two different versions of parties with regard to the same occurrence.
No doubt, all the Judges must definitely pay heed to what Hon’ble Mr Justice Rajnesh Oswal has held so very clearly, cogently and convincingly in this leading case and he has ably cited relevant case laws also so as not to leave even an iota of doubt on this score!
Sanjeev Sirohi, Advocate