two FIRs not permissible in respect of one and the same : Supreme Court 2013

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.305 OF 2013
(Arising out of S.L.P. (Crl.) No. 9276 of 2012)
Surender Kaushik and others …
Appellants
Versus
State of Uttar Pradesh and others
..Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal, by special leave, is directed
against the order dated 12.10.2012 passed by the
Division Bench of the High Court of Judicature at
Allahabad in Criminal Miscellaneous Writ Petition No.
15077 of 2012 wherein the High Court has declined
to quash the FIR No. 442 of 2012 registered at P.S.
Civil Lines, Meerut, that has given rise to Crime No.
Page 2
491 of 2012 for offences punishable under Sections
406, 420, 467, 468, 471, 504 and 506 of the Indian
Penal Code (for short “the IPC”).
3. At the very outset, it is requisite to be stated that the
appellants had invoked the jurisdiction under Article
226 of the Constitution for quashment of the FIR on
two counts, namely, first, that no prima facie case
existed for putting the criminal law into motion and,
second, when on the similar and identical cause of
action and allegations, FIR No. 425 of 2012
corresponding to Crime No. 475 of 2012 had already
been registered, a second FIR could not have been
lodged and entertained. The High Court, by the
impugned order, has opined that it cannot be held
that no prima facie case is disclosed and, thereafter,
proceeded to issue certain directions in relation to
surrender before the concerned court and grant of
interim bail in view of the decision rendered by the
Full Bench of the Allahabad High Court in Amrawati
and another v. State of UP1 and Lal Kamlendra
1 2005 Cri. L.J. 755
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Pratap Singh v. State of Uttar Pradesh and
others2.
4. We are not adverting to the second part of the order
as the controversy in this regard has not emerged
before this Court in the present case. The assail to
the validity of registration of second FIR has not been
dealt with by the High Court. Mr. Nagendra Rai,
learned senior counsel appearing for the appellants,
did not advance any contention and, rightly so, with
regard to the existence of a prima facie case for
registration of the FIR, but emphatically put forth the
proponements pertaining to the validity of
entertaining the second FIR despite the lodgment of
an earlier FIR in respect of the same cause of action
and the same incident. Therefore, we shall restrict
our delineation to the said sentinel issue exclusively.
5. From the factual background which has been
exposited in this appeal and the documents annexed
thereto, it is limpid that FIR No. 274 of 2012 was
lodged by the appellant No. 1, Surender Kaushik, as
the Secretary of Sanjeev Memorial Education Society
2 (2009) 4 SCC 437
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on 29.5.2012 against Dr. Subhash Gupta, Dr. Harshu
Gupta and Yunus Pahalwan, members of the society,
alleging that in collusion with one Surya Prakash
Jalan, they had prepared fake and fraudulent
documents. It was further alleged that their
signatures had been forged indicating their
participation in various general/executive meetings
of the society, though they had not attended the said
meetings. On the basis of the said FIR, a crime under
Sections 420, 467, 468 and 471 of the IPC was
registered.
6. One Dr. Subhash Gupta filed an application before
the Additional Chief Judicial Magistrate, Meerut,
under Section 156(3) of the Code of Criminal
Procedure (for brevity “the Code”) alleging, inter alia,
that he was never a member of the Sanjeev Memorial
Education Society, Ghaziabad and further he was
neither present in the meetings of the society which
were held on 1.10.2008 and 16.4.2009 nor was he a
signatory to the resolutions passed in the said
meetings. It was further asseverated in the
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application that the accused persons, namely, P.C.
Gupta, Seema Gupta, Surender Kaushik, Kamlesh
Sharma and Vimal Singh, had fabricated an affidavit
on 15.12.2008 with forged signatures and filed
before the Deputy Registrar, Society Chit and Fund,
Mohanpuri, Meerut. The said petition was
entertained and on the basis of the direction of the
learned Magistrate, FIR No. 425 of 2012 was lodged
on 21.8.2012 for the offences punishable under
Sections 406, 420, 467, 468, 471, 504 and 506 of the
IPC.
7. As the facts would further unfurl, FIR No. 442 of 2012
which gave rise to Crime No. 491 of 2012 was
registered on 4.9.2012 and it is apt to note that the
said FIR came to be registered on the basis of an
order passed by the learned Magistrate under
Section 156(3) of the Code. In the said case, the
complainant was Smt. Nidhi Jalan, one of the
members of the Governing Body of the society, and it
was alleged that she is a member of the society
which runs an educational institution, namely, Mayo
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International School, and the accused persons,
namely, P.C. Gupta, Seema Gupta, Vikash Jain,
Bhawna Jain, Sushil Jain, Shubhi Jain, Surender
Kaushik, Kamlesh Sharma, Rajender Sharma,
Virender Bhardwaj, Vimal Singh and Renu Sharma,
having entered into a conspiracy had prepared
forged documents regarding meetings held on
different dates, fabricated signatures of the members
and filed before the competent authority with the
common intention to grab the property/funds of the
society. Be it noted, the members had filed affidavits
before the competent authority that they had never
taken part in the meetings of the school
management and had not signed any papers. As
already stated, the said FIR pertained to offences
punishable under Sections 406, 420, 467, 468, 471,
504 and 506 of the IPC.
8. It is submitted by Mr. Nagendra Rai, learned senior
counsel, that the FIR No. 442 of 2012 could not have
been lodged and entertained as law prohibits
lodgment of the second FIR in respect of the same
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cognizable offence and it is propounded by him that
when there is a legal impediment for setting the
criminal law in motion, the decision in State of
Haryana and others v. Bhajan Lal and others3
gets attracted. To bolster the contention that the
second FIR could not have been entertained, the
learned senior counsel has commended us to the
decisions in T.T. Antony v. State of Kerala and
others4, Pandurang Chandrakant Mhatre and
others v. State of Maharashtra5 and Babubhai v.
State of Gujarat and others6.
9. Mr. R.K. Dash, learned senior counsel for the State,
per contra, submitted that there is no absolute
prohibition in law for lodgment of a second FIR and,
more so, when allegations are made from different
spectrum or, for that matter, when different versions
are put forth by different persons and there are
different accused persons. It is urged by him that the
decisions relied upon by the appellants are
3 1992 Supp (1) SCC 335
4 (2001) 6 SCC 181
5 (2009) 10 SCC 773
6 (2010) 12 SCC 254
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distinguishable on facts and the proposition of law
laid down therein is not applicable to the case at
hand. The learned senior counsel would further
contend that the principles stated in Ram Lal
Narang v. State (Delhi Administration)7 and
Upkar Singh v. Ved Prakash and others8 are
attracted to the case at hand.
10. Mr. Altaf Ahmed, learned senior counsel appearing
for the complainant, the fourth respondent herein,
has submitted that on certain occasions, same set of
facts may constitute different offences and when
there are two distinct offences having different
ingredients, there would be no embargo for
registration of two FIRs. It is further canvassed by
him that on certain occasions, two FIRs may have
some overlapping features but it is the substance of
the allegations which has to be looked into, and if a
restricted view is taken, then no counter FIR can ever
be lodged. The learned senior counsel would further
submit that the investigation by the police cannot be
7 (1979) 2 SCC 322
8 (2004) 13 SCC 292
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scuttled and the accused persons cannot be allowed
to pave the escape route in this manner. It has been
highlighted by him that lodging of second FIR for the
same cause of action or offence is based on the
principle that a person should not be vexed twice,
but if there are offences having distinctive
ingredients and overlapping features, it would not
invite the frown of Article 20 of the Constitution of
India. The pronouncement in State (NCT of Delhi)
v. Navjot Sandhu alias Afsan Guru9 has been
commended to us.
11. Chapter XII of the Code deals with information to the
police and their powers to investigate. As provided
under Section 154 of the Code, every information
relating to commission of a cognizable offence either
given orally or in writing is required to be entered in
a book to be kept by the officer-in-charge of the
concerned police station. The said FIR, as mandated
by law, has to pertain to a cognizable case. Section
9 (2005) 11 SCC 600
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2(c) of the Code defines “cognizable offence” which
also deals with cognizable cases. It reads as follows:-
“cognizable offence” means an offence for
which, and “cognizable case” means a
case in which, a police officer may, in
accordance with the First Schedule or
under any other law for the time being in
force, arrest without warrant;”
12. If the primary requirement is satisfied, an FIR is
registered and the criminal law is set in motion and
the officer-in-charge of the police station takes up the
investigation. The question that has emerged for
consideration in this case is whether after
registration of the FIR and commencement of the
investigation, a second FIR relating to the same
incident on the basis of a direction issued by the
learned Magistrate under Section 156(3) of the Code
can be registered.
13. For apposite appreciation of the issue raised, it is
necessitous to refer to certain authorities which
would throw significant light under what
circumstances entertainment of second FIR is
prohibited. In Ram Lal Narang (supra), this Court
was dealing with the facts and circumstances of a
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case where two FIRs were lodged and two chargesheets
were filed. The Bench took note of the fact
that the conspiracy which was the subject-matter of
the second case could not be said to be identical with
the conspiracy which was the subject-matter of the
first one and further the conspirators were different,
although the conspiracy which was the subjectmatter
of the first case may, perhaps, be said to have
turned out to be a part of the conspiracy which was
the subject-matter of the second case. After
adverting to the various facets, it has been opined
that occasions may arise when a second
investigation started independently of the first may
disclose wide range of offences including those
covered by the first investigation. Being of this view,
the Court did not find any flaw in the investigation on
the basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed on behalf
of the accused that the registration of fresh
information in respect of the very same incident as
an FIR under Section 154 of the Code was not valid
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and, therefore, all steps taken pursuant thereto
including investigation were illegal and liable to be
quashed. The Bench, analyzing the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169,
170 and 173 of the Code, came to hold that only the
earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 of the Code and,
therefore, there can be no second FIR and
consequently, there can be no fresh investigation on
receipt of every subsequent information in respect of
the same cognizable offence or the same occurrence
or incident giving rise to one or more cognizable
offences. It was further observed that on receipt of
information about a cognizable offence or an incident
giving rise to a cognizable offence or offences and on
entering the FIR in the station house diary, the officer
in charge of a police station has to investigate not
merely the cognizable offence reported in the FIR but
also other connected offences found to have been
committed in the course of the same transaction or
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the same occurrence and file one or more reports as
provided in Section 173 of the Code.
15. It is worth noting that in the said case, the two-Judge
Bench explained and distinguished the dictum in
Ram Lal Narang (supra) by opining that the Court
had indicated that the real question was whether the
two conspiracies were in truth and substance the
same and held that the conspiracies in the two cases
were not identical. It further proceeded to state that
the Court did not repel the contention of the
appellant regarding the illegality of the second FIR
and the investigation based thereon being vitiated,
but on facts found that the two FIRs in truth and
substance were different since the first was a smaller
conspiracy and the second was a larger conspiracy as
it turned out eventually. Thereafter, the Bench
explained thus: –
“The 1973 CrPC specifically provides for
further investigation after forwarding of
report under sub-section (2) of Section 173
CrPC and forwarding of further report or
reports to the Magistrate concerned under
Section 173(8) CrPC. It follows that if the
gravamen of the charges in the two FIRs —
the first and the second — is in truth and
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substance the same, registering the
second FIR and making fresh investigation
and forwarding report under Section 173
CrPC will be irregular and the court cannot
take cognizance of the same.”
16. In Upkar Singh (supra), a three-Judge Bench was
addressing the issue pertaining to the correctness of
law laid down in the case of T.T. Antony (supra).
The larger Bench took note of the fact that a
complaint was lodged by the first respondent therein
with Sikhera Police Station in Village Fahimpur Kalan
at 10.00 a.m. on 20th May, 1995 making certain
allegations against the appellant therein and some
other persons. On the basis of the said complaint,
the police had registered a crime under Sections 452
and 307 of the IPC. The appellant had lodged a
complaint in regard to the very same incident against
the respondents therein for having committed
offences punishable under Sections 506 and 307 of
the IPC as against him and his family members. As
the said complaint was not entertained by the
concerned police, he, under compelling
circumstances, filed a petition under Section 156(3)
of the Code before the Judicial Magistrate, who
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having found a prima facie case, directed the
concerned police station to register a crime against
the accused persons in the said complaint and to
investigate the same and submit a report. On the
basis of the said direction, Crime No. 48-A of 1995
was registered for offences punishable under
Sections 147, 148, 149 and 307 of the IPC.
Challenging the direction of the Magistrate, a revision
was preferred before the learned Sessions Judge who
set aside the said direction. Being aggrieved by the
order passed by the learned Sessions Judge, a
Criminal Miscellaneous petition was filed before the
High Court of Judicature at Allahabad and the High
Court, following its earlier decision in Ram Mohan
Garg v. State of U.P.10, dismissed the revision.
While dealing with the issue, this Court referred to
paragraph 18 of T.T. Antony (supra) and noted how
the same had been understood: –
“11. This observation of the Supreme
Court in the said case of T.T. Antony is
understood by the learned counsel for the
respondents as the Code prohibiting the
filing of a second complaint arising from
10 (1990) 27 ACC 438
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the same incident. It is on that basis and
relying on the said judgment in T.T. Antony
case an argument is addressed before us
that once an FIR is registered on the
complaint of one party a second FIR in the
nature of a counter-case is not registrable
and no investigation based on the said
second complaint could be carried out.”
17. After so observing, the Court held that the judgment
in T.T. Antony (supra) really does not lay down such
a proposition of law as has been understood by the
learned counsel for the respondent therein. The
Bench referred to the factual score of T.T. Antony
(supra) and explained thus:-
“Having carefully gone through the above
judgment, we do not think that this Court
in the said cases of T.T. Antony v. State of
Kerala has precluded an aggrieved person
from filing a counter-case as in the present
case.”
To arrive at such a conclusion, the Bench referred to
paragraph 27 of the decision in T.T. Antony (supra)
wherein it has been stated that a case of fresh
investigation based on the second or successive FIRs, not
being a counter-case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and in
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respect of which pursuant to the first FIR either
investigation is under way or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482 of the Code
or under Articles 226/227 of the Constitution. Thereafter,
the three-Judge Bench ruled thus:
“In our opinion, this Court in that case only
held that any further complaint by the
same complainant or others against the
same accused, subsequent to the
registration of a case, is prohibited under
the Code because an investigation in this
regard would have already started and
further 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 the Code. This prohibition
noticed by this Court, in our opinion, does
not apply to counter-complaint by the
accused in the first complaint or on his
behalf alleging a different version of the
said incident.”
18. Be it noted, in the said verdict, reference was made
to Kari Choudhary v. Sita Devi11, wherein it has
been opined that there cannot be two FIRs against
the same accused in respect of the same case, but
when there are rival versions in respect of the same
episode, they would normally take the shape of two
11 (2002) 1 SCC 714
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different FIRs and investigation can be carried out
under both of them by the same investigating
agency. Reference was made to the pronouncement
in State of Bihar v. J.A.C. Saldanha12 wherein it
has been highlighted that the power of the
Magistrate under Section 156(3) of the Code to direct
further investigation is clearly an independent power
and does not stand in conflict with the power of the
State Government as spelt out under Section 3 of the
Police Act.
19. It is worth noting that the Court also dealt with the
view expressed in Ram Lal Narang (supra) and
stated thus: –
“22. A perusal of the judgment of this
Court in Ram Lal Narang v. State (Delhi
Admn.) also shows that even in cases
where a prior complaint is already
registered, a counter-complaint is
permissible but it goes further and holds
that even in cases where a first complaint
is registered and investigation initiated, it
is possible to file a further complaint by
the same complainant based on the
material gathered during the course of
investigation. Of course, this larger
proposition of law laid down in Ram Lal
Narang case is not necessary to be relied
12 (1980) 1 SCC 554
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on by us in the present case. Suffice it to
say that the discussion in Ram Lal Narang
case is in the same line as found in the
judgments in Kari Choudhary and State of
Bihar v. J.A.C. Saldanha. However, it must
be noticed that in T.T. Antony case, Ram
Lal Narang case was noticed but the Court
did not express any opinion either way.”
20. Explaining further, the Court observed that if the law
laid down by this Court in T.T. Antony (supra) is to
be accepted to have held that a second complaint in
regard to the same incident filed as a counter
complaint is prohibited under the Code, such
conclusion would lead to serious consequences
inasmuch as the real accused can take the first
opportunity to lodge a false complaint and get it
registered by the jurisdictional police and then that
would preclude the victim to lodge a complaint.
21. In Pandurang Chandrakant Mhatre (supra), the
Court referred to T.T. Antony (supra), Ramesh
Baburao Devaskar v. State of Maharashtra13
and Vikram v. State of Maharashtra14 and opined
that the earliest information in regard to the
commission of a cognizable offence is to be treated
13 (2007) 13 SCC 501
14 (2007) 12 SCC 332
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as the first information report and it sets the criminal
law in motion and the investigation commences on
that basis. Although the first information report is
not expected to be an encyclopaedia of events, yet
an information to the police in order to be first
information report under Section 154(1) of the Code,
must contain some essential and relevant details of
the incident. A cryptic information about the
commission of a cognizable offence irrespective of
the nature and details of such information may not
be treated as first information report. After so
stating, the Bench posed the question whether the
information regarding the incident therein entered
into general diary given by PW-5 is the first
information report within the meaning of Section 154
of the Code and, if so, it would be hit by Section 162
of the Code. It is worth noting that analyzing the
facts, the Court opined that information given to the
police to rush to the place of the incident to control
the situation need not necessarily amount to an FIR.
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22. In Babubhai (supra), this Court, after surveying the
earlier decisions, expressed the view that 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 two different incidents/crimes,
the second FIR is permissible. In case the accused in
the first FIR comes forward with a different version or
counterclaim in respect of the same incident,
investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court
expressed the view that the High Court had correctly
reached the conclusion that the second FIR was liable
to be quashed as in both the FIRs, the allegations
related to the same incident that had occurred at the
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same place in close proximity of time and, therefore,
they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that
the lodgment of two FIRs is not permissible in respect
of one and the same incident. The concept of
sameness has been given a restricted meaning. It
does not encompass filing of a counter FIR relating to
the same or connected cognizable offence. What is
prohibited is any further complaint by the same
complainant and others against the same accused
subsequent to the registration of the case under the
Code, for an investigation in that regard would have
already commenced and allowing registration of
further complaint would amount to an improvement
of the facts mentioned in the original complaint. As
is further made clear by the three-Judge Bench in
Upkar Singh (supra), the prohibition does not cover
the allegations made by the accused in the first FIR
alleging a different version of the same incident.
Thus, rival versions in respect of the same incident
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do take different shapes and in that event, lodgment
of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No.
274 of 2012 against four accused persons alleging
that they had prepared fake and fraudulent
documents. The second FIR came to be registered
on the basis of the direction issued by the learned
Additional Chief Judicial Magistrate in exercise of
power under Section 156(3) of the Code at the
instance of another person alleging, inter alia, that he
was neither present in the meetings nor had he
signed any of the resolutions of the meetings and the
accused persons, five in number, including the
appellant No. 1 herein, had fabricated documents
and filed the same before the competent authority.
FIR No. 442 of 2012 (which gave rise to Crime No.
491 of 2012) was registered because of an order
passed by the learned Magistrate. Be it noted, the
complaint was filed by another member of the
Governing Body of the Society and the allegation was
that the accused persons, twelve in number, had
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entered into a conspiracy and prepared forged
documents relating to the meetings held on different
dates. There was allegation of fabrication of the
signatures of the members and filing of forged
documents before the Registrar of Societies with the
common intention to grab the property/funds of the
Society. If the involvement of the number of accused
persons and the nature of the allegations are
scrutinized, it becomes crystal clear that every FIR
has a different spectrum. The allegations made are
distinct and separate. It may be regarded as a
counter complaint and cannot be stated that an
effort has been made to improve the allegations that
find place in the first FIR. It is well-nigh impossible to
say that the principle of sameness gets attracted.
We are inclined to think so, for if the said principle is
made applicable to the case at hand and the
investigation is scuttled by quashing the FIRs, the
complainants in the other two FIRs would be deprived
of justice. The appellants have lodged the FIR
making the allegations against certain persons, but
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that does not debar the other aggrieved persons to
move the court for direction of registration of an FIR
as there have been other accused persons including
the complainant in the first FIR involved in the
forgery and fabrication of documents and getting
benefits from the statutory authority. In the ultimate
eventuate, how the trial would commence and be
concluded is up to the concerned court. The
appellants or any of the other complainants or the
accused persons may move the appropriate court for
a trial in one court. That is another aspect
altogether. 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.
Hence, we conclude and hold that the submission
that the FIR lodged by the fourth respondent is a
second FIR and is, therefore, liable to be quashed,
does not merit acceptance.
26. In view of the aforesaid premised reasons, the
appeal, being sans substance, stands dismissed.
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……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
February 14, 2013
26