Date:- 16.05.2016
WHETHER SECOND FIR IS LEGALLY PERMISSIBLE....?
TWO FIR:-
Sub Section (1) of Section 154 Cr. P.C. requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer-in-charge of police station, has to be reduced to writing by him or under the direction of such officer and shall be signed by the person giving such information.
It reads as under :-
"154. Information in cognizable cases:-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in book to be kept by such officer in such form as the State Government may prescribe in this behalf."
On plain reading of subsection (1) of Section 154 Cr.P.C. it cannot be construed that there can be more than one FIR about an occurrence. The first information is that information which is given to the police first in point of time, on the basisi of which the investigation commences, However, it has to be examined on the merits of each case whether subsequently registered FIR is second FIR about the same incident or the offence is based on distinguished and different different facts and whether or not its scope of inquiry is entirely different.
What should be the contents of FIR
In T.T. Antony Vs. State of Kerala & Ors. [(2001) 6 SCC 181], the Supreme Court dealt with a case wherein respect of the same cognizable offence and same 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 the commission of cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 154 of Cr.P.C. and all other subsequent information would be covered by Section 162 of Cr.P.C. for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences and the Investigating Officer has to file one or more reports under Section 173 of Cr. P.C.
Even after submission of the report under Section 173 (2) of Cr.P.C. if the Investing Officer comes across any further information pertaining to the 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) of Cr. P.C.
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 scheme of the Cr.P.C.
Counter Claim:-
In Upkar Singh Vs. Ved Prakash & Ors. [(2004)13 SCC 292], the Supreme Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court.
What had been laid down by the Supreme 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 Cr.P.C. 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 of Cr.P.C.
However, this rule will not apply to a counter claim 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 different FIR and investigation can be carried under both of the them by the same investigating agency and thus, filing FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.
Maintainability of second FIR
The issue regarding maintainability of second FIR was considered by the Supreme Court as back as in 1979 in Ram Lal Narang Vs. Om Prakash Narang and Anr. [AIR 1979 SC 1791]. In that case the Supreme Court considered a situation wherein two FIRS had been lodged.
The first one formed part of subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and 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 FIRs was permissible held that no straight jacket 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 Rameshchnadra Nandlal Parikh Vs. State of Gujrat & Anr. [(2006) 1 SCC 732], the Supreme Court reconsidered its earlier judgments including that of T.T. Antony (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 First FIR, there is no prohibition in accepting the second FIR.
In Nirmal Singh Kahlon Vs. State of Punjab & Ors. [(2009) 1 SCC 441], the Supreme Court considered a case where an FIR had already been lodged on 14.06.2002 in respect of the offences committed by 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.
The second FIR was lodged by the CBI. The Supreme Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.
In Babubhai Vs. State of Gujrat & Ors. {(2010) 12 SCC 254], the Supreme Court has approved the recording of more than one FIR in respect of same case committed on the ground that the police is required to register FIR on the basis of information provided and that "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 Md. Sadrul Khan Vs. State of Bihar [Patna High Court, 21 Sep 2015] an accidental death was reported, there was no information regarding commission of murder. Since the dead body in question was found on the road by the Police Patrolling Party, it prima facie appeared to be a case of accidental death and hence an FIR against an unknown vehicle driver was registered under Sections 279 and 304-A IPC on the basis of statement of local Chaukidar.
However, on the next date when the dead body was identified by the father and other family members of the deceased, the father of the deceased lodged a definite information making specific allegation against four persons including the petitioner who are alleged to have conspired together in order to commit the murder of the deceased and after commission of murder they threw the dead body on the road in order to create an impression of accidental death.
The information given in the second FIR is not the same as given in the first FIR. The allegation made in the second FIR is different version of the said incident. In view of the ratio laid down by the Supreme Court in the judgments cited herein above, which have also taken into considertation the judgment in case of T.T. Antony (Supra), a second FIR pertaining to different version or rival version in respect of the same incident is permissible in law.
WHETHER SECOND FIR IS LEGALLY PERMISSIBLE....?
TWO FIR:-
Sub Section (1) of Section 154 Cr. P.C. requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer-in-charge of police station, has to be reduced to writing by him or under the direction of such officer and shall be signed by the person giving such information.
It reads as under :-
"154. Information in cognizable cases:-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in book to be kept by such officer in such form as the State Government may prescribe in this behalf."
On plain reading of subsection (1) of Section 154 Cr.P.C. it cannot be construed that there can be more than one FIR about an occurrence. The first information is that information which is given to the police first in point of time, on the basisi of which the investigation commences, However, it has to be examined on the merits of each case whether subsequently registered FIR is second FIR about the same incident or the offence is based on distinguished and different different facts and whether or not its scope of inquiry is entirely different.
What should be the contents of FIR
In T.T. Antony Vs. State of Kerala & Ors. [(2001) 6 SCC 181], the Supreme Court dealt with a case wherein respect of the same cognizable offence and same 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 the commission of cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 154 of Cr.P.C. and all other subsequent information would be covered by Section 162 of Cr.P.C. for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences and the Investigating Officer has to file one or more reports under Section 173 of Cr. P.C.
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 scheme of the Cr.P.C.
Counter Claim:-
In Upkar Singh Vs. Ved Prakash & Ors. [(2004)13 SCC 292], the Supreme Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court.
What had been laid down by the Supreme 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 Cr.P.C. 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 of Cr.P.C.
However, this rule will not apply to a counter claim 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 different FIR and investigation can be carried under both of the them by the same investigating agency and thus, filing FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.
Maintainability of second FIR
The issue regarding maintainability of second FIR was considered by the Supreme Court as back as in 1979 in Ram Lal Narang Vs. Om Prakash Narang and Anr. [AIR 1979 SC 1791]. In that case the Supreme Court considered a situation wherein two FIRS had been lodged.
The first one formed part of subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and 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 FIRs was permissible held that no straight jacket 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 Rameshchnadra Nandlal Parikh Vs. State of Gujrat & Anr. [(2006) 1 SCC 732], the Supreme Court reconsidered its earlier judgments including that of T.T. Antony (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 First FIR, there is no prohibition in accepting the second FIR.
In Nirmal Singh Kahlon Vs. State of Punjab & Ors. [(2009) 1 SCC 441], the Supreme Court considered a case where an FIR had already been lodged on 14.06.2002 in respect of the offences committed by 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.
The second FIR was lodged by the CBI. The Supreme Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.
In Babubhai Vs. State of Gujrat & Ors. {(2010) 12 SCC 254], the Supreme Court has approved the recording of more than one FIR in respect of same case committed on the ground that the police is required to register FIR on the basis of information provided and that "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 Md. Sadrul Khan Vs. State of Bihar [Patna High Court, 21 Sep 2015] an accidental death was reported, there was no information regarding commission of murder. Since the dead body in question was found on the road by the Police Patrolling Party, it prima facie appeared to be a case of accidental death and hence an FIR against an unknown vehicle driver was registered under Sections 279 and 304-A IPC on the basis of statement of local Chaukidar.
However, on the next date when the dead body was identified by the father and other family members of the deceased, the father of the deceased lodged a definite information making specific allegation against four persons including the petitioner who are alleged to have conspired together in order to commit the murder of the deceased and after commission of murder they threw the dead body on the road in order to create an impression of accidental death.
The information given in the second FIR is not the same as given in the first FIR. The allegation made in the second FIR is different version of the said incident. In view of the ratio laid down by the Supreme Court in the judgments cited herein above, which have also taken into considertation the judgment in case of T.T. Antony (Supra), a second FIR pertaining to different version or rival version in respect of the same incident is permissible in law.
