*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.P. No.4639 of 2010 %04-06-2010 # Majeed and 2 others ….Petitioners Vs. $ The State of A.P., rep. By its Public Prosecutor and another. …. Respondents !Counsel for the Appellants: Sri N. Mukunda Reddy Counsel for the Respondent No.1: Public Prosecutor Counsel for the Respondent No.2: -- <Gist : >Head Note: ? Cases referred: [1] AIR 2001 Supreme Court 2637 HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.4639 OF 2010 DATE:04.06.2010 Between: Majeed and 2 others …….Petitioners And: The State of A.P., rep. By its Public Prosecutor and another. ……Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.4639 OF 2010 ORDER: This petition is filed by A-5 to A-7 in Crime No.91 of 2010 of Tandur police station, Ranga Reddy District. They are accused of offences punishable under Sections 376, 420, 324, 504, 506/34 IPC along with other accused. Originally, the 2nd respondent gave report to the Tandur police and on the basis of it case in Crime No.86 of 2010 was registered for offences punishable under Sections 504, 506, 509 IPC against 5 persons. Having not satisfied with that report, the 2nd respondent filed private complaint in the court of Judicial Magistrate of the First Class, Tandur against A-1 to A-8 alleging offences under Sections 376, 420, 324, 504, 506/34 IPC on the same allegations. The Magistrate referred the private complaint to the same Tandur police for investigation and report under Section 156(3) Cr.P.C and thereupon the police registered the same as case in Crime No.91 of 2010 for the above offences against A-1 to A-8. No doubt, allegations under Sections 376 and 420 IPC are mainly intended against A-1 who is stated to have loved the 2nd respondent and developed sexual relationship with her and finally refused to marry her. It is alleged that A-5 to A-8 were in mediation and that in the mediation, money was offered to her. Instead of A-1 marrying her and that she refused for the same and that there was altercation in which she was beaten and threatened. Specific allegation of A-5 to A-8 participating in the mediation and altercation which ensued thereafter, were made in the private complaint. Therefore, I do not find any reasons at this stage to quash the private complaint as such. It is contended by the petitioners’ counsel that there can be no second FIR in respect of the same cognizable offence, same incident or occurrence. Reliance was placed by the petitioner’s counsel on T.T.Antony v. State of Kerala[1] on this aspect. Observation of the Supreme Court about two FIRs in the same case were made with reference to registration of second FIR by the police on receipt of further information after final report is filed after investigating into the first FIR. Fact situation in the reported decision is entirely different from fact situation in the present case. It is true that there cannot be two FIRs and two investigations by two different police officers on the same occurrence. In case the defacto-complainant is not satisfied with the manner of registration of her report by the police having regard to sections of law and naming the accused persons therein, then the defacto-complainant is not without any remedy. It is for that reason the defacto-complainant has approached the Magistrate and filed private complaint before him. In all fairness the defacto-complainant should have disclosed about the police registering her report for minor offences and leaving out certain other offenders. If such disclosure was made by the defacto-complainant in her private complaint, then the Magistrate would not have referred the private complaint to the police again for investigation under Section 156(3) Cr.P.C. When already one FIR is pending for investigation with the police and if the defacto-complainant is not satisfied about the same and filed private complaint in the lower court disclosing her previous FIR, then the lower court should have followed the procedure prescribed by undertaking enquiry as contemplated under Proviso to Section 202(2) Cr.P.C. since the offence is exclusively triable by Court of Session. Since there was non disclosure of result of her earlier report to the police by the 2nd respondent in her private complaint in the lower court, this irregularity of referring the private complaint to the police for investigation under Section 156(3) Cr.P.C arose. At any rate, it is only an irregularity and not an illegality. The said irregularity can be corrected by setting aside endorsement of the Magistrate referring the private complaint to the police for investigation under Section 156(3) Cr.P.C. It is suggested by the Public Prosecutor that before passing this order, it may be necessary to issue notice of this petition to the 2nd respondent/defacto-complainant. This Court is of the opinion that since no adverse order is being passed by this Court in this petition against the 2nd respondent and since this Court is taking corrective steps with regard to irregular procedure adopted by the lower court, no notice to the 2nd respondent/defacto-complainant is necessary. Her rights and contentions and allegations in her private complaint are not being discussed much less adversely commented herein. In the private complaint, the 2nd respondent stated that though report was given by her to the Tandur police on this incident on 10.05.2010, the police did not take any action against accused. It appears that the 2nd respondent did not know about registration of her case by the police for less severe offences. In the result, endorsement of the Judicial Magistrate of the First Class, Tandur on private complaint of the 2nd respondent resulting in registration of FIR in Crime No.91 of 2010 by the Tandur police is set aside. The lower court is directed to make enquiry as per Proviso to Section 202(2) Cr.P.C on the said private complaint by giving notice to the 2nd respondent and calling upon her to produce witnesses cited in the private complaint for the purpose of examination during that enquiry. The petition is disposed of accordingly. ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date:04.06.2010. Note: L.R Copy to be marked (b/o)Gk. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.4639 OF 2010 Date:04.06.2010 Gk. [1] AIR 2001 Supreme Court 2637