PERMISSIBILITY OF SECOND F.I.R & ITS Consolidation
in a COMMON location
The Code of Criminal Procedure is a complete
code in itself so far as the procedural in criminal cases during pre-trial or
trial cases are concerned. The reporting of a crime as First Information Report
(F.I.R) is the first instance reported setting criminal case in motion. The
issue of arrest, bail both anticipatory or regular bail and filing of charge
sheet u/s 173 of Cr.P.C and cognizance of offence and subsequent thereto framing
of charge shall follow before commencing the actual trial process i.e recording
of evidence. However, there are
instances where more than one F.I.R are sought to be lodged and there are
instances, where, there are connected cases and several F.I.Rs are found
registered and the location of registration of F.I.Rs could also be different.
Therefore, the issue of filing of Several F.I.Rs out of same or similar
transactions and whether second F.I.Rs in respect of the same transactions are
permitted are the aspect that courts has to deal with. Besides that, the
courts, more particularly, High Courts and Supreme Court has also to deal with
the prospect of transfer of case of case in a particular location with a view
to balance the equity and prospect of hardships. Section 406 of Cr.P.C clearly
deals with power of Supreme Court of India in transferring case or cases to a
particular location. Similarly, Section 407 of Cr.P.C prescribes such power to
High Courts and still further Sections 408 to Section 410 of Cr.P.C also
prescribes similar powers to Sessions Court and Courts of Chief Judicial
Magistrate of Chief Metropolitan Magistrate as the case may be. These powers
however are exercised to meet the situation emerging in the set of cases and
not as a routine, since, the basic provision of criminal justice system and
territorial jurisdiction cannot be jettisoned. The Supreme Court is clothed
with powers under Article 32 of Constitution of India as also under article 142
of Constitution of India as plenary power.
The Supreme Court in the matter of the following has dealt
with prospect of registering different F.I.Rs in a particular circumstances and
also what are the circumstances when order of consolidation of FIRs could be
permitted. The relevant decisions in this context are as under:
1. Arnab Ranjan Goswami vs. Union of
India and others (2020)
14 SCC 12,
2. Amitbhai Anilchandra Shah vs. Central
Bureau of Investigation and another (2013) 6 SCC 348,
3. T.T. Antony Vs. State
of Kerala and others reported in (2001) 6 SCC 181.State of M.P. & others vs. Nandlal Jaiswal &
others (1986) 4 SCC 566;
4. Shankara Cooperative Housing Society Limited vs. M.
Prabhakar and others (2011) 5 SCC 607;
5. Maharashtra State Road Transport Corporation vs. Balwant
Regular Motor Service, Amaravati and others AIR
1969 SC 329;
6. State of Jharkhand vs. Lalu Prasad Yadav (2017) 8 SCC 1;
The Supreme Court
in T.T. Antony (Supra) has held that
an individual
cannot be subjected to multiple proceedings for the same offence, same being
contrary to constitutional mandate.
In the above case, after
taking note of the provisions of Section 154 to 157, 162, 169,170 and 173 of
the Cr.P.C and considering the issue of striking a balance between citizen's
right under Article 19 and 21 of
the Constitution and expansive power of police to make investigation, has held
that there can be no second FIR and no fresh investigation on receipt of every
subsequent information in respect of the same cognizable offence or same
occurrence giving rise to one or more cognizable offences. It has further been
held that after registration of the FIR under Section 154 of the Cr.P.C. in
respect of commission of the cognizable offence, all such subsequent
information is covered by Section 162 of the Cr.P.C and that Officer
In-charge of the Police Station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences found to have
been committed in the course of the same transaction or the same occurrence and
file one or more reports provided in Section 173 of Cr.P.C.
In the matter of Upkar Singh Vs Ved Prakash & Ors (2004)
13 SCC 292 had occasion to explain the judgments in the case of T.T. Antony
(supra) and has held that the second complaint in regard to the same incident
filed as a counter complaint is not prohibited under the Cr.P.C. It was
made clear that in T.T. Antony's case (supra) the legal right of an aggrieved person
to file counter complaint had not been considered.
Yet another aspect was
considered by Supreme Court in the matter reported as Nirmal Singh Kalhon Vs State of Punjab & Ors (2009) 1 SCC 441. In that
case, CBI had registered the second FIR. The Supreme Court after considering
the nature and extent of crime has held that the C.B.I is not precluded from
lodging the second F.I.R, if larger conspiracy is detected and that local
police had not detected that.
In Amitbhai
Anilchandra Shah (Supra), The Supreme Court has summarized the decision in
para no. 52 and the sum and substance of Para no. 52 (a) to (j) are as under:
(a)
The CBI plea in Narmada Bai case being part of the same
series of cognizable offence forming part of the first FIR directed the CBI to
“take over” the investigation, but no fresh F.I.R was permitted.
b) After the First Information Report, and upon
completion of investigation and on the basis of evidence collected,
Investigating Officer has to form an opinion under Section 169 or 170 of Cr.P.C and
forward his report to the concerned Magistrate under Section 173
(2) of the Code.
c) Even after filing of such a report, if he comes
into possession of further information or material, there is no need to
register a fresh FIR, and he may make further investigation normally with the
leave of the Court and where during further investigation, he collects further
evidence, oral or documentary, he is obliged to forward the same with one or
more further reports which is evident from sub-section (8) of Section 173 of
the Code. Thus, there can be no second FIR and, consequently, there can be no
fresh investigation on receipt of every subsequent information in respect of
the same cognizable offence or the same occurrence or incident giving rise to
one or more cognizable offences.
d) The officer-in-charge of the police station has
to investigate not merely the cognizable offence reported in the FIR but also
other connected offences found to have been committed in the course of the same
transaction or the same occurrence and file one or more reports as provided
in Section 173 of the Code. Sub-section (8) of Section 173 of the Code
empowers the police to make further investigation, obtain further evidence
(both oral and documentary) and forward a further report(s) to the Magistrate.
e) There cannot be second FIR in respect of the
same offence/event because whenever any further information is received by the
investigating agency, it is always in furtherance of the first FIR.
f) The second FIR is a consequence of the event
which had taken place earlier may be treated as a part of the same chain of
events;.
g) In apt case, police can file supplementary
charge sheet under section 173 (8) of the Code will serve the
purpose.
h) Administering criminal justice is a two-end
process, where guarding the ensured rights of the accused under Constitution is
as imperative as ensuring justice to the victim. It is definitely a daunting
task but equally a compelling responsibility vested on the court of law to protect
and shield the rights of both. Thus, a just balance between the fundamental
rights of the accused guaranteed under the Constitution and the expansive power
of the police to investigate a cognizable offence has to be struck by the
court. Accordingly, the sweeping power of investigation does not warrant
subjecting a citizen each time to fresh investigation by the police in respect
of the same incident, giving rise to one or more cognizable offences. As a
consequence, in our view this is a fit case for quashing the second F.I.R to
meet the ends of justice.
i) The investigating officers are the kingpins in
the criminal justice system. Their reliable investigation is the leading step
towards affirming complete justice to the victims of the case. Hence they are
bestowed with dual duties i.e. to investigate the matter exhaustively and
subsequently collect reliable evidences to establish the same.
The Section 154 stipulates provisions
for registration of the FIR on the basis of the information relating
to the commission of cognizable offences. Section 155 of Cr.P.C provides for recording of such information in
respect of non-cognizable offences. As regards what actions are to be
contemplated in this regard Section 169 and 170 of the Cr.P.C shall be relevant. After completion of investigation the
accused may be released, when evidence is deficient or to send the case to
Magistrate when evidence is sufficient. Section 173 of the Cr.P.C. requires the police officer to submit the
final report before the Magistrate on completion of investigation containing
the requisite details. Section 173 (8) permits further investigation after
submission of report to the Magistrate. Section 220 of the Cr.P.C deals with trial for more than one offences
and provides that if in one series of act so connected together as to form the
same transaction, more offences than one are committed by the same person, he
may be charged with and tried at one trial for every such offence.
Similarly, Section 219 of the Cr.P.C. provides that three offences of the same
crime within one year may be charged together.
In Babubhai Vs State of Gujarat & Ors (2010) 12 SCC 254 the Supreme Court has clarified that if
two FIRs pertains to two different incidents/crimes, the second FIR is
permissible. Applying the test of sameness, it has been held that subsequent to
registration of an FIR any further complaint in connection with the same or
connected offence relating to the incident or incidents which are part of the
same transaction is not permissible. Taking note of the earlier pronouncements
on the issue, it has been held that:
"20. Thus, in view of
the above, the law on the subject emerges to the effect that an FIR under Section
154 of Cr.P.C is a very important document. It is the first
information of a cognizable offence recorded by the Officer In-Charge of the
Police Station. It sets the machinery of criminal law in motion and marks the
commencement of the investigation which ends with the formation of an opinion
under Section 169 or 170 of Cr.P.C, as the case may be, and
forwarding of a police report under Section 173 Cr.P.C.
Thus, it is quite possible that more than one piece of information be given to
the Police Officer In- charge of the Police Station in respect of the same
incident involving one or more than one cognizable offences. In such a case, he
need not enter each piece of information in the Diary. All other information
given orally or in writing after the commencement of the investigation into the
facts mentioned in the First Information Report will be statements falling under
Section 162 Cr.P.C”.
“21. In such a case the
court has to examine the facts and cir- cumstances giving rise to both the FIRs
and the test of sameness is to be applied to find out whether both the FIRs
relate to the same incident in respect of the same occurrence or are in regard
to the incidents which are two or more parts of the same transaction. If the
answer is affirmative, the second FIR is liable to be quashed. However, in
case, the contrary is proved, where the version in the second FIR is different and
they are in respect of the two different incidents/crimes, the second FIR is
permissible. In case in respect of the same incident the accused in the first
FIR comes forward with a different version or counter claim, investigation on
both the FIRs has to be conducted."
In the matter of Chirag M Pathak & Ors vs. Dollyben
Kantilal Patel & others (2018) 1 SCC 330 in a case where six FIRs were registered in
different police stations and the ground was raised that all the FIRs are based
on identical facts, the Hon'ble Supreme Court held that the six cooperative
societies were different, their members were different, their area of operation
was different, the lands which were sold/transferred were also different in
different area, the party to whom the land was sold was different. The totality
of factual allegations constitutes commission of several offences in relation
to every cooperative society, hence, the FIRs were not overlapping and no case
for quashing the FIR was made out.
In the matter of Lalu
Prasad Yadav (supra), the defalcations were from different treasury for
different financial year, amount involved was different, fake
vouchers/allotment letters/supply orders were prepared with the help of different
sets of accused persons, the Supreme Court has held that the separate trials
are required to be conducted. It has further been WP. No.7496/21 clarified
that 'same offence' is different from 'same kind of offence' and has held that
if 'same kind of offence' was committed multiple times then each time it
constitutes a separate offence and therefore accused can be tried in different
trials. It has also been clarified that even if the modus operandi was same
that would not make it a single offence when offences were different. The
Supreme Court in the said case has held as under:
"42. We are unable to
accept the submissions raised by learned senior counsel. Though there was one
general charge of conspiracy, which was allied in nature, the charge was qualified
with the substantive charge of defalcation of a particular sum from a
particular treasury in particular time period. The charge has to be taken in
substance for the purpose of defalcation from a particular treasury in a
particular financial year exceeding the allocation made for the purpose of
animal husbandry on the basis of fake vouchers, fake supply orders etc. The
sanctions made in Budget were separate for each and every year. This Court has
already dealt with this matter when the prayers for amalgamation and joint
trial had been made and in view of the position of law and various provisions
discussed above, we are of the opinion that separate trials which are being
made are in accordance with provisions of law otherwise it would have
prejudiced the accused persons considering the different defalcations from
different treasuries at different times with different documents. Whatever
could be combined has already been done. Each defalcation would constitute an
independent offence. Thus, by no stretch, it can be held to be in violation
of article 20(2) of the Constitution or Section 300 Cr.P.C.
Separate trials in such cases is the very intendment of law. There is no room
to raise such a grievance. Though evidence of general conspiracy has been
adduced in cases which have been concluded, it may be common to all the cases
but at the same time offences are different at different places, by different
accused persons. As and when a separate offence is committed, it becomes
punishable and the substantive charge which has to be taken is that of the
offence under the P.C.Act etc. There was conspiracy hatched which was continuing one
and has resulted into various offences. It was joined from time to time by different
accused persons, so whenever an offence is committed in continuation of the
conspiracy, it would be punishable separately for different periods as
envisaged in Section 212(2) , obviously, there have to be separate trials. Thus it cannot be
said to be a case of double jeopardy at all. It cannot be said that for the
same offence the accused persons are being tried again”.
In the aforesaid judgment
it is further held that what is pertinent is that the modus operandi being the
same would not make it a single offence when the offences are separate.
Commission of offence pursuant to a conspiracy has to be punished. If
conspiracy is furthered into several distinct offences there have to be
separate trials. There may be a situation where in furtherance of general
conspiracy, offences take place in various parts of India and several persons
are killed at different times. Each trial has to be separately held and the
accused to be punished separately for the offence committed in furtherance of
conspiracy. In case, there is only one trial for such conspiracy for separate
offences, it would enable the accused person to go scot free and commit number
of offences which is not the object of law. The concept is of 'same offence'
under Article 20 (2) of
Constitution of India and Section 300 Cr.PC has to be looked into in this perspective. Therefore,
what shall follow is that if distinct offences are being committed, there has
to be independent trial for each of such offence based on such conspiracy and
in the case of misappropriation as statutorily mandated. There cannot be any joinder
of charges in one trial for more than one year except as provided in Section
219 of Cr.P.C. In the above case, one general conspiracy from 1988 to 1996 has
led to commission of various offences as such separate and different trials were
necessary for each of such offence, based upon conspiracy in which different
persons have participated at different times at different places for completion
of the offence. Thus, separate offences in case or cases like that cannot be combined.
In TT Antony case (Supra) it is held that subjecting an individual to
multiple proceedings for the same offence is contrary to constitutional
provisions and mandate.
In Romila Thapar Vs Union of India (2018) SC 753 the Supreme Court has
held that an accused shall have no say in the subject of designating
investigating agency.
In Arnab Goswami case
(Supra) the Supreme Court had quashed all identical FIRs filed in different
places in the country and a F.I.R in Nagpur was directed to be transferred to
Mumbai.
CONCLUSION
It is thus settled proposition in law
that that there can be no straightjacket formula for consolidating or clubbing
the FIR and Courts are required to examine the facts of each case. A second FIR
in respect of same offence or different offences committed in the course of
same transaction is not permissible. The second FIR on the basis of receipt of
information in respect of same cognizable offence or the same occurrence or
incident giving rise to one or more cognizable offences is not permissible. It
is also settled that the Courts are required to draw a balance between the
fundamental rights of the citizens under Article 19 & 21 of
the Constitution and expansive power of the police to investigate a cognizable
offence. In a given case, second or successive FIR for same or connected
cognizable offence alleged to have been committed in the course of the same
transaction in respect of which earlier FIR is already registered, may furnish
a ground for interference by the Court, but, where, the FIRs are based upon the
separate incident or similar or different offences or the subsequent crime is
of such magnitude that it does not fall within the ambit and scope of the
earlier FIR, then, the second FIR can be registered. Where two incidents took
place at different point of time or involve different person or there is no
commonality and the purpose thereof is different and the circumstances are also
different, then, certainly, there can be more than one FIR. In such a situation
the Court is required to see the circumstances of a given case indicating
proximity of time, unity or proximity of case, continuity of action,
commonality of purpose of the crime to ascertain if more than one FIR can be
allowed to stand.
Thus, it needs no more elucidation that
subsequent FIRs for different offences committed in the course of same
transaction or offences arising as a consequence of prior offence is not
permissible, but the second complaint in regard to the same incident filed as a
counter complaint, as also the second FIR for the same nature of offence
against same accused persons lodged by different person or containing the
different allegation is permissible.
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Anil K Khaware
Founder & Senior
Associate
Societylawandjustice.com
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