First lecture on section 154 , some general topics relating to fir :

"The processual law so dominates in certain systems as to overpowers substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act."

General constituents of an FIR : who did what to whom?

Section 154 of the Criminal Procedure Code, 1973 lays down the procedure for lodging an FIR from the analysis of the section following things can be gathered :

1. Written Form

When the information about the commission of a cognizable offence is given orally, the police must write it down.

2. Read Over

A person giving the information or making a complaint ,can demand that the information recorded by the police to be read over to him/her.

3. Verification

One should sign the report only after verifying that the information recorded by the police is as per the details given by you.

4. Signature

Once the information has been recorded by the police, it must be signed by the person giving the information. It is to to kept in mind that people who are unable to read or write are expected to put their left thumb impression on the document after being satisfied that it is a correct record.

5.Copy of FIR

A person filing a FIR has the right of getting a copy of FIR free of cost.

What is the purpose of FIR ? A brief overview.

Principle object of FIR from point of view of the informant is to set the criminal law in motion and from point of view of investigative authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty. Its valuable piece of evidence for the purpose of corroboration and contradiction the oral evidence adduced at the trial. . Prompt FIR substantially reduces the chances of embellishment and possibility of false implication .

Material omissions in FIR . How to deal with them ?

Material ommissions are important to poke holes in prosecution case but not minor omissions , its a settled law the FIR is not encyclopaedia of offence. it can be used only for contradicting and discrediting the the informant and not other witness. Omission to name the accused is not material in certain circumstances and material in some circumstances.

sometimes delay of 1 day is fatal and other time delay of months also is not fatal . whether the delay is fatal to prosecution case is to be decided on facts and circumstances not on ritualistic formula. Determinitive criteria is whether the delay is explained and accounted for ?

Correction of date by magistrate - FIR contained an account of occurance and specified name of two eye witnesses and the magistrate altered the date of incident but not the time of its happening it was held that there being no evidence to show that magistrate manipulated official record and initalled a wrong date with a view to help the prosecution the FIR cannot be said to be ante dated. - S. kaur v. Baldev singh AIR 1999 SC 1581

it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance.

Evidentiary value - 6-9 and 11 , 145 , 157 , 159 , 160 Evidence act. (Topic is properly covered in lecture of Evidence Act, 1872.)

When is FIR Substantive Evidence?

General rule is that FIR is not a substantive evidence it can only be used for corroboration or contradiction as envisaged under 145 and 157 Indian Evidence Act , 1872 respectively. However, if FIR is transformed into a dying declaration by the death of informant who also happened to be the victim , then it can become substantive evidence.

If the informant of any certain offence is accused himself, then it cannot be possibly to use the facts or information of the FIR for the purpose of corroboration or contraction because accused cannot be a prosecution witness, and he would very rarely offer himself to be a defense witness under Section 315 of the Code of Criminal Procedure. It is noted that if the F.I.R. is of a confessional nature, then again it cannot be proved against the accused as such actions are prohibited by Section 25 of the Evidence Act. ( later the judgment is cited in support of this contention)

Is registration of an FIR mandatory?

Lalita Kumari v. Government of Uttar pradesh AIR 2013 SC (constitutional bench)

Directions to be followed in regards to Registration of an FIR, are discussed below:

(i) It is mandatory under section 154 of the Code to get a FIR registered, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) A preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not, in case the information received does not disclose a cognizable offence but indicates the necessity for an inquiry.

(iii) FIR must be registered, if the inquiry discloses the commission of a cognizable offence.a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week in cases where preliminary inquiry ends in closing the complaint. Reasons must be disclosed and stated in brief for the complaint being closed and not being proceeded further.

(iv)No police officer can avoid his duty of registering offence if cognizable offence has been committed and is hence disclosed. Strict steps must be taken against erring officers who do not register the FIR in case of cognizable offences.

(v) The scope of preliminary inquiry is only to ascertain whether the information reveals any cognizable offence and not to verify the veracity of the information received.

(vi) The category of cases in which preliminary inquiry may be made are as under-

(a) Cases of Matrimonial disputes family disputes

(b) Matters of Commercial offences

(c) Cases involving medical negligence.

(d) Matters of Corruption cases

(e) Abnormal delayed cases where in initiating criminal prosecution, for example, over 3 months have already passed.

The above are non-exhaustive conditions.

(vii)A preliminary inquiry should be made time bound and in any case it should not exceed 7 days while ensuring and protecting the rights of the accused and the complainant. Any reason or fact of such delay must be reflected in the General Diary entry.

(viii) It is a mandatory practice as directed by the Supreme Court that since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, either resulting in registration of FIR or leading to an inquiry, must be meticulously reflected in the diary, no matter even if it is a preliminary inquiry.

What if it gets late to register a FIR?

It is well known that longer the delay, the stronger the suspicion. The delay should be satisfactorily explained so that the case does not appear to be a false one-

Names of witnesses should be carefully mentioned in a FIR if possible , however its not intended to be an encyclopedia of all the events which has happened. This only applies to cases where witness are known. As much as material facts as possible and other first hand incidents relevant to the matter should be registered in an FIR . Even if the FIR is delayed, however they material facts to be filed remains the same and hence the name of the accused, if known should also be disclosed. However, if name of the accused is unknown its not a material omission in the FIR

Can an informant’s later version be regarded as FIR?

No.

As FIR is the one on which investigation originally started and any later statement during an investigation, even if found true won’t be admitted as FIR rather the statement if recorded will be covered as a statement under section 161 and be hit by section 162 Cr.PC .

Is there any such thing as a second FIR on the same transactions as mentioned in earlier FIR ?

(in brief - there cannot be two FIRs registered in relation to the same occurrence or incidents or different incident forming part of the same transaction but if it relates to different incidences and transaction then it can be registered .

Test - whether a subsequently registered FIR is a second FIR about the same incident or offence or is based on distinct and different set of facts and whether its scope of inquiry is totally different and not identical one?

It will always be a mixed question of law and facts depending on the merits of a given case )

In Rameshchandra Nandlal Parikh Vs. State of Gujarat Supreme Court reconsidered the earlier judgments including T.T. Antony and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.

Criminal Appeal No. 305 of 2013 - Surendra Kaushik and others Vs. State of UP

But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct

In the case of Anju Chaudhari vs. State of UP , it has been held by the Honourable Supreme Court that the examination of in-built safeguards provided by the legislature in the very language of Section 154 of the Code is an significant aspect which can be deduced from the principle akin to the double-jeopardy, rule of fair investigation and to prevent the abuse of power by the Investigation Authority of the police. Therefore, the second FIR for the same incident can not be registered. . However, where the incident is separate, offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of FIR recorded first, in such circumstances, the second FIR could be registered. The Hon'ble Supreme Court expressed the view that the court has to examine the facts and circumstances giving rise to file FIRs and test of sameness is to be applied to find out whether both the FIRs relates to the same incident and same occurrence or in regard to incident which was two or more part of the same transactions. In case the answer is affirmative, the FIR is liable to be quashed. However, when the version is different in second FIR and it relates to different incident or crimes, the second FIR is permissible under law.

what if the informant files a false FIR?

False complaint being registered as FIR is is a reality and hence it cannot be ignored. Lodging a false complaint in India is punishable offence under section 182 and section 211 , 193 , 500 of the Indian Penal Code. Wrongful arrest and malicious prosecution , defamation as well.

According to Section 211 of Indian Penal Code accordingly any person who starts a criminal proceeding against any other person on the basis of filing false information to cause injury to the alleged person is liable to face imprisonment for a period extending to two years. Also if the charge discloses an offence which is punishable by death or to a minimum sentence of imprisonment up to 7 years then the informant is punishable with imprisonment for a maximum period of 7 years. All of them however , require sanction for cognizance under 195 of Cr.PC. These are just illustrative not exhaustive narration of events possible.

According to section 182 there is prescribed a punishment for 6 months and a fine in case of any person registering a false complaint to a public servant ,on the basis of which the said public servant takes a certain action which he wouldn’t have had taken otherwise. This however is the realm of the public servant concerned himself. He is the authority to decide as to whether its fit to complain or not.

Is there any remedy available to persons against whom false FIR is filed?

A person against whom FIR is filed which is false then in that case as a precautionary step he has the freedom to apply for anticipatory bail under section 438 of the criminal procedure code, 1973. Or can prefer a petition under 482 of Cr.PC for quashing of an FIR if it satisfies the law laid down for quashing an FIR .

Position - whether FIR needs to be a detailed catalogue of events and happenings?

In Rattan Singh v. State of H.P., the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.

Uploading of an FIR

Youth Bar Association of India v. Union of India, AIR 2016 SC 4136

(It aimed at promoting prompt action, transparency and curb arbitrariness. It primarily safeguarded the interests of accused persons. The accused who may come to know that he figured in a FIR, but has no idea of the allegations which form its basis)

1. An accused is entitled to get a copy of the FIR at an early stage than as prescribed under section 207 of the CrPC 1973

2. The copies of the FIR, unless the offence is sensitive in nature like sexual offences pertaining to insurgence terrorism and of that category, offences under POCSO Act 2012 and such other offences should be upload on the police website.

3. The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of DySP or any person holding equivalent post.

4. The direction for uploading of FIR in the website of all the states shall be given effect from 15th November 2016

FIR IS A PUBLIC DOCUMENT A DENIAL OF COPY WILL BE AGAINST PRINCIPLES OF NATURAL JUSTICE AND VIOLATIVE OF ARTICLE 21 (PARAMJIT SINGH V. STATE OF PUNJAB AIR 2008 SC 441)

Cross FIR

When in a same transaction two rival parties allege offence against one another its a case of an cross FIR . Police will then record FIR of both parties .

Amitbhai Shah Vs. CBI, reported in (2013) Cri.L.J. 2313, it has been reiterated that second FIR, if in the nature of cross complaint or counter complaint is permissible, which is an exception carved out in Upkar Singh's case (supra) to the effect that, when the second FIR consists of alleged offences which are in the nature of cross-case/cross- complaint or counter-complaint, such cross-complaint would be permitted as a FIR.

While dealing with the issue in the case of Anju Choudhary Vs. State of U.P and another reported in 2012 DGLS (Soft) 688: 2013(6) SCC 384, Their Lordships of the Hon'ble Supreme Court made reference of observations in the case of Kari Choudhary Vs. Sita Devi 2002(1) SCC 714 by giving hypothetical illustrations, and explained the very {15} Cri.A-6331-16.odt object and purport of the relevant provisions of the Cr.P.C, which would read as under:

"23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code, then in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimate right to bring the real accused to book. This cannot be the purport of the Code."

Guidelines for Quashing of an FIR ( illustrative not exhaustive list of case laws on point)

[Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr. (Criminal Appeal No. 1723 of 2017)]

The Hon'ble Supreme Court after discussing various precedents on the subject summarized the following broad principles in relation to Section 482 for quashing FIRs.

1.Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

2.The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

3.In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

4.While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

to secure the ends of justice or

to prevent an abuse of the process of any court;

5.The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

6.In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

7.As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

8.Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

9.In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

10.There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Apex Court dismissed the appeal holding that the High Court was justified in declining to entertain the Application for quashing FIR in the exercise of its inherent jurisdiction.

Delhi High Court

Uniplas India Limited vs State And Anr. on 3 April, 2002

The broad propositions that could be culled out from these decisions for quashing an FIR/complaint/ criminal proceeding in exercise of inherent or writ jurisdiction of this court could be capsuled as:-

1) Where the uncontroverter allegations made in the complaint/FIR, even if taken on face value and accepted in entirety, do not prima facie make out the alleged offence against the accused.

2) Where such allegations are so absurd and inherently improbable so that no prudent person could reach a conclusion that there was any sufficient ground for proceeding against the accused.

3) where the allegations were so vexatious and frivolous so as to amount to abuse of process of court.

4) Where these were manifestly attended by a malafide or grudge or oblique purpose or personal vendetta prior to lodging of complaint/FIR and subsequently also if accompanied by other attendant circumstances.

5) Where the allegations disclosed nothing but a transaction of a purely civil nature like breach of contract.

6) An FIR/Complaint/criminal proceedings was not liable to be quashed merely because of pendency of any civil litigation between the parties on the same subject matter or because the transaction gave rise to both civil and criminal liability provided it disclosed some offence giving rise to criminal liability.

two kinds of fir in CRPC 154 and 157

Lalita Kumari v. Govt. of U.P.4 Supreme Court said that the Code contemplates two kinds of FIRs. namely (1) FIR under section 154 (1) and (2) FIR under section 157(1) (read with section 36). The duly signed FIR under Section 154(1) is by the informant to the concerned officer at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant Section 157(1) and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith.

Cryptic FIR

Cryptic telephonic message cannot constitute FIR. Why telephonic coversations donot constitute FIRs since , its neither reduced to writing by police nor given in writing signed by the informant . In such cases , view of the court is that report can be recorded by station writer who receives the messaes , he may himself sign it as the person giving information and may state in evidence that he received the message and recorded the message truly and honestly.

In Ramsinh Bavaji Jadeja v. State (1994) 2 SCC 685, this Court,( reiterated in

Patai @ Krishna Kumar vs State Of U.P on 30 March, 2010)

"If the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be first information report. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer in charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on basis of that information, the officer in charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer "in the course of investigation", covered by Section 162 of the Code. That statement cannot be treated as first information report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as first information report.".

Tapinder Singh vs. State Of Punjab (SC May 7, 1970)

Facts- The person, giving the information on telephone, did not disclose his identity; nor did he give any further particulars. When the police officer receiving the telephone message made further enquiries from him he disconnected the telephone. This report was entered in the daily diary at 5.35 p.m.

Held – The telephonic message recorded in the daily diary of the police station was a cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence and could not, therefore, be treated as first information report. The mere fact that this information was the first in point of time could not by itself clothe it with the character of first information report. The question of whether or not a particular document constitutes a first information report has to be determined on the relevant facts and circumstances of each case.

Doctor's memo is also not an FIR , its no part of his duty to record an FIR (State of Gujrat v. anirudh singh)

GENERAL DIARY AND FIR

The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on day-to-day basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR Book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.

It is relevant to point out that FIR Book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the Case Numbers given in courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the concerned Judicial Magistrate.

On the other hand, General Diary contains a huge number of other details of the proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate having jurisdiction over the police station, though its copy is sent to a superior police officer. Thus, it is not possible to keep strict control of each and every FIR recorded in the General Diary by superior police officers and/or the court in view of enormous amount of other details mentioned therein and the numbers changing every day.

The signature of the complainant is obtained in the FIR Book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the general diary. Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the complaint which is to be recorded in the General Diary and not the full complaint. This does not fit in with the suggestion that what is recorded in General Diary should be considered to be the fulfillment/compliance of the requirement of Section 154 of registration of FIR. In fact, the usual practice is to record the complete complaint in the FIR book (or annex it with the FIR form) but record only about one or two paragraphs (gist of the information) in the General Diary.

The signature of the complainant is obtained in the FIR Book as and when the complaint is given to the police station. On the other hand, there is no such requirement of obtaining signature of the complainant in the general diary. Moreover, at times, the complaint given may consist of large number of pages, in which case it is only the gist of the complaint which is to be recorded in the General Diary and not the full complaint. This does not fit in with the suggestion that what is recorded in General Diary should be considered to be the fulfillment/compliance of the requirement of Section 154 of registration of FIR. In fact, the usual practice is to record the complete complaint in the FIR book (or annex it with the FIR form) but record only about one or two paragraphs (gist of the information) in the General Diary.

In view of the above, it is useful to point out that the Code was enacted under Entry 2 of the Concurrent List of the Seventh Schedule to the Constitution which is reproduced below:-

“2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.” On the other hand, Police Act, 1861 (or other similar Acts in respective States) were enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution, which is reproduced below:-

“ Police (including railway and village police) subject to the provisions of Entry 2A of List I.”

Now, at this juncture, it is pertinent to refer Article 254(1) of the Constitution, which lays down the provisions relating to inconsistencies between the laws made by the Parliament and the State Legislatures. Article 254(1) is reproduced as under:-

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.” Thus it is clear from the mandate of Article 254(1) of the Constitution that if there is any inconsistency between the provisions of the Code and the Police Act, 1861, the provisions of the Code will prevail and the provisions of the Police Act would be void to the extent of the repugnancy.

If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in the FIR Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR.

It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR Book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. (PARAGRAPH 63 CLEARS ALL DOUBT AS THAT FIR IS TO BE RECORDED IN FIR BOOK)

EFFECT OF INFORMANT AND INVESTIGATOR BEING POLICE OFFICER -

Case name: Mukesh Singh vs. State (Narcotic Branch of Delhi)

Case no.: SLP(Crl) Diary No. 39528/2018

A Constitution Bench of the Supreme Court has held that it cannot be held as a general proposition that an accused under NDPS Act is entitled to an acquittal merely because the complainant is the investigating officer.

"Merely because the informant and the investigating officer is the same, it cannot be said that the investigation is biased and the trial is vitiated", the bench observed while specifically overruling Mohan Lal v. State of Punjab (2018) 17 SCC 627.

The Constitution Bench clarified that it depends on the facts and circumstances of each case if the investigation has become tainted because the informant and the investigation officer was the same. It cannot be held as a blanket rule. The bench comprising bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and S. Ravindra Bhat concluded as follows:

I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal;

II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

Effect of Delay In rape cases:-

State of Himachal Pradesh v. Gyan Chand (May 1, 2001SC). In this case Supreme Court observed, “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

(ordinarily family of the victim would try to avoid stigma to the unfortunate victim )

Delay in forwarding the FIR to magistrate _:

Pala Singh and Anr. v. State of Punjab : AIR 1972 SC 2679. Extraordinary delay in sending the copy of the F.I.R. to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvement and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the F.I.R. is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial.

This Court in Sarwan Singh and Ors. v. State of Punjab AIR 1976 SC 2304, held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R.

Effect of omission to record substance of report in daily dairy - it does not affect the validity of report if other formalities are observed.

Entry in general Diary effect of :

SP , CBI v. Tapan Kumar Singh - 2003 Cr LJ 2322 SC -if entry in general diary expresses prima facie cognizable offence it can be treated as an FIR , the true test for a report to be regarded as an FIR is that police officer should be able to get a reason to suspect the commission of an offence which is is entitled to investigate .

TERRITORIAL JURISDICTION and Zero FIR

Zero FIR is the type of FIR that can be filed in any police station regardless of the place of incidence or jurisdiction. However after investigating and filing it with the magistrate, it transferred to the police station which has the competent jurisdiction. It is to be noted that a normal FIR has a proper serial number on the contrary the zero FIR is registered in any police station and hence is not numbered. The police station where the zero FIR is originally registered is supposed to make a basic investigation into the case before passing it on to the other police station which has its competent jurisdiction.

Supreme Court of India

Satvinder Kaur vs State (Govt. Of N.C.T. Of Delhi) ... on 5 October, 1999

It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the Officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub-section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the Officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. If the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.

Discussion of law commission report on wrongful prosecution: -

277 report of law commission :Wrongful Prosecution (Miscarriage of Justice): Legal Remedies

This section delves into the forms in which the said police

and prosecutorial misconducts manifests. A review of the case law

discussed earlier and other comparative examples shows that the

said misconducts broadly surfaces in the form of disregard of

procedural rules such as improper disclosure of information;

falsifying or planting or fabricating evidence; withholding,

suppressing or destroying exculpatory evidence; coercing

confessions/recoveries or other abuse of process of law etc. Within

the existing criminal law framework, to determine what could

amount to such misconduct, reference can be made to the

provisions contained in Chapters IX and XI of the Indian Penal

Code (IPC) (discussed in detail in Chapter IV - Current Scenario –

Overview and Inadequacies:-

Based on the aforesaid, an illustrative list of procedural

misconduct would include the following:

(i) Making or framing a false or incorrect record or document

for submission in a judicial proceeding or any other

proceeding taken by law;

(ii) Making a false declaration or statement authorized by law to

receive as evidence when legally bound to state the truth - by

an oath or by a provision of law;

(iii) Otherwise giving false evidence when legally bound to state

the truth - by an oath or by a provision of law;

(iv) Fabricating false evidence for submission in a judicial

proceeding or any other proceeding taken by law

(v) Destruction of an evidence to prevent its production in a

judicial proceeding or any other proceedings taken by law

(vi) Bringing a false charge, or instituting or cause to be

instituted false criminal proceedings against a person; (211 and 193)

(vii) Committing a person to confinement or trial acting contrary

to law; or (wrongful confinement and 220)

(viii) Acting in violation of any direction of law in any other

manner not covered in (i) to (vii) above, resulting in an injury

to a person.

CURRENT REMEDIES: (constitutional fallout of civil and criminal remedies)

1 .With respect to the issue under consideration, sections 166,

166A and 167 under Chapter IX are to be taken note of. Section

166 criminalises willful departure from the direction of the law by

a public servant with an intent to cause injury to any person offender must have done the act being a public servant (ii) there

must be a direction of law which the public servant was bound to

obey; (iii) public servant knowingly disobeyed such direction; (iv) by

such disobedience public servant must have intended to cause or

knew it to be likely to cause injury to a person. This section has

been observed to be comprehensive and generally includes several

offences involving abuse of official authority. Offence hereunder is

punishable with maximum imprisonment for one year with or

without fine.

167 deals with particular

instance of a public servant assigned the duty of preparation of a

document, incorrectly prepares, frames, translates such document.

A false entry in his diary by a Station House Officer (SHO) to

support an Inspector rendered him guilty under this section of

intentionally framing an incorrect public record75. The section

prescribes a maximum imprisonment of three either description

upto 3 years, or fine, or with both.

State v. Saqib Rehman & Ors. the Sessions

Court, Dwarka, New Delhi, vide its order dated 2 February 2011,

made a finding that the concerned police officials had framed the

persons accused in a false criminal case, fabricating evidence etc.,

and ordered lodging of a complaint against the concerned officials

under sections 166 and 167, IPC, among others. In this case, the

persons accused were already in illegal custody when the police

officials scripted an encounter basing it on a „fake secret informer‟

and showing an arrest of a later date.

On 166A, IPC,

titled Public servant disobeying direction under law.‟78 This section

lays down three kinds of derelictions of law by a public servant

which would amount to an offence thereunder: public servant (a)

knowingly disobeys any direction of law prohibiting him from

requiring attendance at any place of any person for the purpose of

investigation into an offence or any other matter; (b) knowingly

disobeys, to the prejudice of any person, any direction of law

regulating the manner in which he is to conduct such

investigation; and sub-clause (c) fails to record FIR in relation to

offence under certain sections specified therein. The punishment

provided is minimum of 6 months rigorous imprisonment and

maximum of 2 years, and fine.

Section 218, IPC on the same lines as section 167, IPC

criminalises intentional preparation of a false/incorrect record by a

public servant with the intent to cause or knowing it to be likely to

cause loss or injury to any person. It is wider in scope compared to

section 167 because it includes within its purview incorrect

preparation or framing with the intention of saving any person

from legal punishment or saving some property from forfeiture or

other charge. An offence under section 218, IPC is punishable with

a maximum imprisonment of 3 years of either description, or with

fine, or with both

Maulad Ahmed v. State of Uttar Pradesh,

the Supreme Court

observed that if a police officer manipulates the record such as

police diary etc., it will be the end of honest investigation; and,

such offences shall receive deterrent punishment.

This section addresses executive abuses in intentionally

illegally confining innocent persons. It is aimed at preventing

abuse of power by officers with the power to commit persons to

trial or confinement. One such instance, also relevant to the issue

under discussion, would be the power of police under section 41,

CrPC to arrest a person without warrant in certain cases, subject

to the requirement under Article 22(2) of the Constitution i.e. to

produce the person arrested before the magistrate within 24 hours.

A failure on the part of the police to comply with the foregoing

requirement without a reasonable cause would come under the

purview of this section, making the concerned officer liable for

punishment thereunder.

However, for the purposes of this section 220, IPC, unlawful

commitment to confinement will not of itself warrant the legal

inference of malice; it needs to be alleged and proved that the

concerned officer corruptly and maliciously confined a person

wrongfully.

CRIMINAL APPEAL NO. 1485 OF 2008

State of Gujarat Versus Kishanbhai Etc

Bench: Chandramauli Kr. Prasad, Jagdish Singh Khehar

On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability.

( If FIR given by thee accused person is non- confessional, it may be admissible in evidence against the accused as an admission under section 21 of the Evidence Act, or again, as showing his conduct under section 8 of the Evidence Act.)

VALUE OF CONFESSIONAL FIR

Supreme Court of India

Bheru Singh vs State Of Rajasthan on 4 February, 1994

In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.

Supreme Court of India

Aghnoo Nagesia vs State Of Bihar on 4 May, 1965

If proof of the confession is excluded by any provision of law such as s. 24, s. 25 and s. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as s. 27 of the Evidence Act. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

If the confession is caused by an inducement, threat or promise as contemplated by s. 24 of the Evidence Act, the whole of the confession is excluded by s. 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by s. 24. To hold that the proof of the admission of other incriminating facts is not barred by s. 24 is to rob the section of its practical utility-and content. It may be suggested that the bar of S. 24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to- this suggestion, the other admissions are relevant but are of no value. But we think that on a plain construction of s. 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, ss. 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.

A little reflection will show that the expression "confession" in ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by ss. 24. 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.

Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody. On the question whether a person directly giving to a police officer information which may be used as evidence against him -may be deemed to have submitted himself to the custody of the police officer within the meaning of s. 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman Upadhyaya(1). For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tan,-,', the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code.

Position as to Ante timed FIR :-

Ante timed FIR , ante-timing and ante-dating of the FIR may be done with the object to falsely implicate the accused . In fact false FIRs are a sad reality of our country . Ante timed means before time the actual FIR is said to be recorded , when FIR contains narrations not possible to have been recorded at the time which F.I.R testifies to have been have been recorded.

Suppose the Victim filed the FIR at police station at 5:30 Pm but FIR says that complaint is recorded 2 Pm of the same day i.e 3 and half hours earlier , and its proved that such is actually the case then FIR can be said to be ante timed. ( Read Anjan Dasgupta Vs. State of West Bengal & Ors. (2006 SC) to have a bit of an experience as to how to deal with ante timed FIR)

[Criminal Appeal No. 298 of 2006]

Criminal Appeal No. 1534, 1832 & 1834 Of 1995. 27-05-2014

Babban V. State of U.P

Cr.P.C. provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act u/s 159 Cr.P.C., if so required. Section 159 Cr.P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.

It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.

Anju Chaudhary vs State Of U.P. & Anr(2013) 6 SCC 384 held If second FIR is distinct and different and is not a mere consequence of the first FIR , then the second FIR can be held to be valid . If the FIR is same and belongs to same transaction , the second FIR would be violative of article 21 . So question should be , whether the second FIR is relates to a distinct transaction or it relates to same transaction as mentioned in first FIR. If its distinct , a second FIR is maintainable , if its same i.e regarding same transaction or its consequence then the second FIR is not maintainable. Awadhesh Kumar Jha v State of Bihar (2016) 3 SCC 8 in this case , the transactions were different : one was an offence relating to illegal trafficking, and the other for providing wrong information to the police. IN this case the two FIRs were not held to be illegal as transactions were distinct. (Keep in mind , if a new fact is merely the consequence of acts alleged or transaction in the original FIR , it will not merit registration of a new/second FIR)

No requirement of hearing before FIR : In the case of Samaj Parivartan Samuday v. State of Karnataka (2012) 7 SCC 407, a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as ‘suspect’ or ‘likely offender’ in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under :

“50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners." This Court in the case of Union of India v. W.N. Chadha (1993) Suppl. (4) SCC 260 clearly spelled out this principle in paragraph 98 of the judgment that reads as under:

“98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.” Supreme Court of India

Anju Chaudhary vs State Of U.P.& Anr on 13 December, 2012

law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [(2001) 4 SCC 350], held that the expression ‘same transaction’ from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences “committed in the course of the same transaction”. Breakdown of the law laid down in Lalita Kumari v. Govt. of Uttar Pradesh (supra) FIR Registration u/s 154 Cr.P.C

In Prakash Singh Badal v. the State of Punjab, for the purpose of deriving conclusions regarding the false-complaint and genuine complaint issue. The court said that there is no mandate of law that a person making a complaint u/s 154(1) is a liar, so that veracity of allegation made must be checked before registration of FIR. The court also stated that legally, benefits of registration are more than that of Non-Registration.

Registration of FIR doesn't compulsorily mean the arrest of accused

The court said that it is a misconception that registration of FIR must necessarily lead to an arrest. Police can always postpone the arrest unless it is prima facie satisfied that delaying the arrest would jeopardize the course of the investigation. Also, Section 41 of Cr.P.C gives the power to police for the arrest of non-arrest of accused.

A few reasons why the police don't register FIR:-

No offence u/s 154(1) of Cr.P.C

To keep crime graph low

Unduly influence of police by accused

Police unaware of the position of law

Police don't want the workload

Leaving the first possibility, the court said that other grounds can't be allowed to be taken by police at all.

The merits, as stated by the court include securing of evidence, apprehending accused and lessening the workload of court and police which leads to peace and order.

Demerits include instant roping of an innocent family, inflation of complaint, the perception that registration of FIR means victory.

FIR, the court said is a form of a preliminary inquiry in itself, the police come at the conclusion itself and that FIR means first investigation report and not final investigation report.

Under Section 156(1) Cr.P.C, SHO can investigate any cognizable offence but whenever a complaint regarding cognizable offence is registered to police, the police is duty-bound to register.

The court said that "Police can't find a distinction in these two provisions. Consequently, the police is staying wrongly that it has a right to make 'preliminary inquiry' even in cases where a complaint u/s 154(1) is made. Very often by confusing its power u/s 156(1) with 154(1) police is holding preliminary inquiry instead of registering FIR first."

Registration of FIR mandatory u/s 154, if there's enough information of cognizable offence and no preliminary inquiry permissible under such situation

If information not enough but there is a necessity of inquiry, it may be conducted to ascertain if there is a cognizable offence

Police must register FIR if a cognizable offence is disclosed

Preliminary inquiry may be made under matrimonial, commercial, medical negligence, corruption cases and cases with abnormal delay

The preliminary inquiry must not exceed 7 days.

All information regarding the cognizable offence must be reflected in the Station Diary as a record of information.

REGISTRATION OF SECOND FIR IN CASE OF SAME OFFENCE :

In RAM LAL NARANG vs. OM PRAKASH NARANG, the Supreme Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs but the object of conspiracy in both the cases was not the same. The Supreme Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

In T.T. ANTONY vs. STATE OF KERALA, the Supreme Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court 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. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 CrPC and all other subsequent information would be covered by Section 162 CrPC for the reason that it is the duty of the investigating officer not merely to investigate cognisable 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 the investigating officer has to file one or more reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the investigating officer comes across any further information pertaining to the (2001) 6 SCC 181 same incident, he can make further investigation, but it is desirable that he must take the leave of the Court and forward the further evidence, if any, with further report or reports under Section 173(8) CrPC. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the CrPC.

In UPKAR SINGH vs. VED PRAKASH, the Supreme Court considered the proposition laid down in T.T. Antony's case ( supra) and explained that the judgment in the said case has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the CrPC because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under Section 162 CrPC. However, this rule will not apply to a counter complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the investigating agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter complaint in respect of the same incident having a different version of events, is permissible.

In RAMESHCHANDARA NANDLAL PARIKH vs. STATE OF GUJARAT, the Supreme Court re-considered the rulings on the subject matter including the case law in T.T. Antony's case (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor; are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the 1st FIR, there is no prohibition in accepting the 2nd FIR.

In NIRMAL SINGH KAHLON vs. STATE OF PUNJAB, the Supreme Court considered a case where an FIR had already been lodged in respect of the offences committed by certain individuals. Subsequently, the matter was handed over to the Central Bureau of Investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries and a 2nd FIR was lodged by the CBI. The Supreme Court concluded that the matter investigated by the CBI dealt with a larger conspiracy and, therefore, the investigation has been on a much wider canvass and held that 2nd FIR was permissible and required to be investigated.

In BABUBHAI vs. STATE OF GUJARAT, the Supreme Court has approved the registration of more than one FIR in respect of same acts committed on the ground that the Police is required to register the FIR on the basis of the information provided and that "where the version in the 2nd FIR is different and they are in respect of the two different incidents/crimes, the 2nd FIR is permissible". In this ruling the Supreme Court has considered the scope of Section 154 CrPC and the litmus test to maintain the 2nd FIR. At paras 20 and 21 of the decision it was held thus:-

"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC 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 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. 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 CrPC.

21. In such a case the Court has to examine the facts and circumstances 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 in the 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 AMITBHAI ANIL CHANDRA SHAH vs. CBI, it was observed that even after filing of charge sheet, if the investigating officer comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to make further investigation normally. Thus there can be no second FIR and consequently, there can 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.

The decision of this Court in AKBARUDDIN OWAISI vs. GOVERNMENT OF AP, relied on by learned senior counsel, relates to filing of multiple complaints is relatable to the theory of "same offence." This Court observed that permitting such a practice can be controlled as it causes tremendous harassment and prejudice to the accused. The ratio laid down in the said decision is based on theory of "same offence" but not the "same kind of offence".

In AWADESH KUMAR JHA vs. STATE OF BIHAR,the Supreme Court observed that there can be no second FIR in the event of any further information being received by investigation agency in respect of the same offence are same occurrence, or same transaction giving rise to one or more of offences for which charge sheet has already been filed by the investigating agency. Recourse available with the investigation agency in the said situation is to conduct further investigation.

In CHIRAG M. PATHAK vs. DOLLYBEN KANTILAL PATEL,11 the Supreme Court was of the view that when facts disclose prima facie cognizable case and also disclose remarkable identity between the two FIRs, as if the first FIR is filed second time, with no change in allegations then the Court may, in an appropriate case, consider it proper to quash the 2nd FIR.

The Supreme Court in a latest decision in P. SREEKUMAR vs. STATE OF KERALA which considered Upkar Singh v Ved Prakash's case (supra) as also T.T. Antony's case ( supra), had observed thus:-

"Be that as it may, if the law laid down by this Court in T.T. Antony's, is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences."

Supreme Court of India

Rhea Chakraborty vs The State Of Bihar on 19 August, 2020

Registration of FIR is mandated when information on cognizable offence is received by the police. Precedents suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case. On this aspect the ratio in Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1 is relevant where on behalf of the Constitution Bench, Chief Justice P Sathasivam, pronounced as under:-

“120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.”

24. The interpretation of Sections 177 and 178 of the CrPC would be relevant on the issue. In Satvinder Kaur Vs. State (Govt of NCT of Delhi) (1999) 8 SCC 728 for the Division Bench, Justice M B Shah wrote as under:-

“12. A reading of the aforesaid sections would make it clear that Section 177 provides for “ordinary” place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime.”

25. Likewise, Justice Arijit Pasayat, in Y Abraham Ajith vs. Inspector of Police, Chennai & Anr. (2004) 8 SCC 100, writing for the Division Bench pronounced as follows:-

“12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

 13. While in civil cases, normally the expression “cause of action” is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression “cause of action” is, therefore, not a stranger to criminal cases.

14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.”

When allegation of Criminal Breach of Trust and Misappropriation is made, on the jurisdictional aspect, this Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha (2007) 5 SCC 786, in the judgment written by Justice S B Sinha, observed as under:-

“21. Section 181 provides for place of trial in case of certain offences. Sub-section (4) of Section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commission of offence of criminal misappropriation and criminal breach of trust and with that end in view, it was provided that such an offence may be inquired into or tried by the court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation.

 22. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure will have the jurisdiction to make investigation.”

In the later judgment of Naresh Kavarchand Khatri Vs. State of Gujarat (2008)8 SCC 300, this Court reiterated the ratio in Satvinder Kaur(supra) and Asit Bhattacharjee (Supra).

Once again, in Rasiklala Dalpatram Thakkar Vs. State of Gujarat (2010) 1 SCC 1, while approving the earlier decisions in Satvinder Kaur(supra) in the judgment rendered by Justice Altamas Kabir as he was then, the Supreme Court made it very clear that a police officer cannot refrain from investigating a matter on territorial ground and the issue can be decided after conclusion of the investigation. It was thus held:-

“27. In our view, both the trial court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 CrPC to hold that it was not within the jurisdiction of the investigating agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction.”

The Patna police although found to be competent to investigate the allegation in the Complaint, the FIR suggests that most of the transactions/incidents alleged in the Complaint occurred within the territorial jurisdiction of the State of Maharashtra. The Mumbai Police was inquiring into the unnatural death of the complainant’s son under section 174 of the CrPC. So far, their inquiry has not resulted in any FIR suggesting commencement of investigation on the criminal aspects, if any. However, the incidents referred to in the Complaint does indicate that the Mumbai police also possess the jurisdiction to undertake investigation on those circumstances. Therefore, in the event of a case being registered also at Mumbai, the consent for the investigation by the CBI under Section 6 of the DSPE Act can be competently given by Maharashtra Government.

The conflict between the two State governments on, who amongst the two is competent to investigate the case, is apparent here. In K.V. Rajendran Vs. Superintendent of Police, CBCID, Chennai & Ors. (2013) 12 SCC 480, the 3 judges Bench in the judgment authored by Justice Dr B S Chauhan held that transfer of investigation must be in rare and exceptional cases in order to do complete justice between the parties and to instil straight confidence in the public mind. While the steps taken by the Mumbai police in the limited inquiry under Section 174 CrPC may not be faulted on the material available before this Court, considering the apprehension voiced by the stakeholders of unfair investigation, this Court must strive to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments. Most importantly, the credibility of the investigation and the investigating authority, must be protected.

The ongoing investigation by the CBI is held to be lawful. In the event a new case is registered at Mumbai on the same issue, in the fitness of things, it would be appropriate if the latter case too gets investigated by the same agency, on the strength of this Court’s order. Such enabling order will make it possible for the CBI to investigate the new case, avoiding the rigors of Section 6 of the DSPE Act, requiring consent from the State of Maharashtra.

In Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradesh and Others (2008) 8 SCC 781, Justice L.S. Panta in his judgment, referred to the inherent power conferred on this Court and stated the following:-

“45. Under Article 142 of the Constitution this Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any “cause” or “matter” pending before it. The expression “cause” or “matter” would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. ………………………..This Court's power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter.”

The above ratio makes it amply clear that the Supreme Court in a deserving case, can invoke Article 142 powers to render justice. The peculiar circumstances in this case require that complete justice is done in this matter. How this is to be achieved must now be decided. . In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well. It is ordered accordingly.