Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 38 SW 2024 Mr. Saad Vs Rudolf and ors.
CNR-MHMM18-003545-2024
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate for the applicant/complainant.
2. This is an application filed under Section 156(3) of Code of
Criminal Procedure, seeking direction against police authorities to
register the offence and investigate the matter. Application is not
supported by affidavit as applicant is in magisterial custody and in jail.
The compliance of Section 154(2) is also done. Alleged offences are of
cognizable nature.
3. Brief facts leading to filing of this application and passing of this
order can be summarized as follows -
It is the case of the applicant that on 27.12.2023, at about 11.30 hrs.
in the evening, applicant came with his friend Miss Kajal Ramdas Gupta,
from Vashi, Navi Mumbai to Chapel Road, Bandra West, Mumbai. For
having water they stopped near general store there to drink water and
found that Mr. Shafi @ Francies Rehman Fernandes, who was known to
him and who is now deceased, was having liquor with his friends i.e.
respondents, in front of the said store. Under the influence of liquor
deceased Shafi, started abusing applicant. Other respondents also joined
him and they snatched gold chain of the applicant. Deceased Mr. Shafi,
started assaulting applicant with slaps, fists and kicks. He ran towards his
house and brought two knives. Handed one of those knives to respondent
Mr. Rudolf, and both of them started assaulting applicant and his friend
Miss. Kajal. Applicant somehow managed to escape and running and then
called his brother to save him. Respondents grabbed applicant and made
him fall. Deceased Mr. Shafi and respondents with the help of knife
stabbed applicant multiple times. When they were about to kill the
applicant, applicant’s brother and his friends intervened. But deceased
Shafi and respondents also assaulted and stabbed applicant’s brother
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C. C. No. 38 SW 2024 Mr. Saad Vs Rudolf and ors.
CNR-MHMM18-003545-2024
multiple times. Then deceased Mr. Shafi, was about to put knife in
complainant’s neck, while fighting with him. Applicant tried to get the
weapon away from deceased Mr. Shafi and weapon fell on the ground.
Mr. Shafi, attempted to pick up that weapon, but complainant got it and
while saving his life from deceased Mr. Shafi. Applcant hit Mr. Shafi.
Then applicant and his brother attempted to ran away, at that time
respondent Mr. Rudolf, came from behind and hit the complainant on his
leg with sharp weapon. Complainant and his brother then went to Holy
Family Hospital, Bandra, Mumbai, and were admitted to I.C.U., on
account of serious injuries. From there they shifted to private hospital for
further treatment.
In the said incidence Mr. Shafi, died due to injuries and crime was
registered against present applicant, his brother and other three persons, at
C.R.No.2117 of 2023, for offence punishable under Section 302 of Indian
Penal Code, i.e. offence of murder. One after another all of them were
arrested. During production of applicant before magistrate i.e. before this
court by Investigating Officer of the said crime. Applicant informed that
investigating Officer despite repeated requests made by him not
registered cross case against respondents. Therefore, this court directed to
Investigating Officer Mr. Pradeep Kerkar, to act as per law regarding
request to register cross case. But till date no such cross case has been
registered, therefore, present application.
4. Heard Ld. Advocate for the applicant. Her submissions are in tune
with the allegations made and mentioned above. About the requirement of
affidavit it is submitted that applicant is in jail since his arrest and
therefore, it can not be produced. As such this requirement can be waived.
The Ld. Advocate also relied on certain citations, P. Sreekumar Vs State of
Kerala and ors. (AIR 2018 SC 1482), Upkar Singh Vs Ved Prakash and ors. ((2004)
13 SCC 292), etc. wherein it is laid down that about the same incidence two
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C. C. No. 38 SW 2024 Mr. Saad Vs Rudolf and ors.
CNR-MHMM18-003545-2024
cross F.I.R.s can be registered as counter F.I.R. is different from the
second F.I.R. in respect of same offence.
5. From the allegations made it is clear that incidence has been
occurred and it constitutes offences alleged, i.e. attempt to murder,
causing grievous hurt with dangerous weapon, etc. The material produced
also supports the allegations and corroborate the incidence as cross
offence has already been registered, investigated and charge sheet has
also been filed. As observed above the one of the basic requirement i.e.
an affidavit, by the applicant, can be dispensed with in view of peculiar
facts and circumstances of the present matter.
6. The Supreme Court, in one of the judgment relied by applicant i.e.
in the case of P. Sreekumar Vs State of Kerala and ors. (AIR 2018 SC 1482),
observed that -
Para 30. The aforesaid principle was reiterated by this Court (Two
Judge Bench) in Surendrer Kaushik and ors. Vs. Stae of U.P. and 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 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, 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.”
Para 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
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C. C. No. 38 SW 2024 Mr. Saad Vs Rudolf and ors.
CNR-MHMM18-003545-2024
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.
Para 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.
7. Thus, from the contents of the application/complaint and the
documents relied by the complainant/applicant it can be inferred that
offence alleged are made out and in view of the position of law about the
counter case described above it is clear that offence needs to be
registered. The main offence is triable by Court of Sessions. The
allegations made are of such a nature that inquiry before this court not
possible. Only police machinery can collect necessary evidence. This fact
also mandates the need of allowing prayer. Considering all these aspects,
ambit of investigation and the above observations I am of the opinion that
it is necessary to issue directions as prayed for. Therefore, following
order-
ORDER
a. Application is allowed.
b. The P.S.O. Bandra, Mumbai, is herewith directed to register the
crime for the offences mentioned in the application and investigate the
matter as per Section 156(3) of Code of Criminal Procedure.
c. The certified copy of the Application, Exh.1, along with documents
produced shall be sent to concerned police station.
d. Application is disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 03.09.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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