SCI- T.T.Antony vs State Of Kerala & Ors - Second FIR on same facts invalid

Supreme Court of India T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Author: S S Quadri Bench: S.S.M.Quadri, S.N.Phukan CASE NO.: Appeal (crl.) 689 of 2001 Special Leave Petition (crl.) 1522 of 2000 PETITIONER: T.T.ANTONY Vs. RESPONDENT: STATE OF KERALA & ORS. DATE OF JUDGMENT: 12/07/2001 BENCH: S.S.M.Quadri, S.N.Phukan JUDGMENT: J U D G M E N T SYED SHAH MOHAMMED QUADRI, J.

On these contentions, four points arise for determination: (i) whether registration of a fresh case, Crime No.268/97, Kuthuparamba Police Station on the basis of the letter of the DGP dated July 2, 1997 which is in the nature of the second FIR under Section 154 of Cr.P.C., is valid and can it form the basis of a fresh investigation? (ii) whether the appellants in Appeal Nos. __________(arising out of SLP(Crl.) 1522/00 and SLP(C) 8840/00) and respondent in Appeal Nos. (arising out of SLP(Crl.) Nos. 2724-25/00) have otherwise made out a case for quashing of proceedings Crime No.268/97 Kuthuparamba Police Station ; (iii) what is the effect of the report of Sri. K. Padmanabhan Commission of Inquiry; and (iv) whether the facts and the circumstances of the case justify a fresh investigation by CBI. As points (i) and (ii) are interconnected, it will be convenient to deal with them together. Inasmuch as the germane question relates to registration of an F.I.R., we may usefully refer to Section 154 of the Code of Criminal Procedure, 1973 (Cr.P.C.) which 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; T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 7 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 a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. Sub-section (1) of Section 154 of Cr.P.C. contains four mandates to an officer in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 of Cr.P.C. which provides that immediately on receipt of the information the officer in charge of the Police Station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Subsection (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub- section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. Apart from T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 8 a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C., as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. 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 the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C. The learned Solicitor General relied on the judgment of this Court in Ram Lal Narang & Ors. Vs. State (Delhi Administration [1979 (2) S.C.C. 322] (referred to as Narangs case) to contend that there can be a second F.I.R. in respect of the same subject matter. In that case the contention urged by the T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 9 appellant was that the police had committed illegality, acted without jurisdiction in investigating into the second case and the Delhi Court acted illegally in taking cognizance of that (the second) case. A reference to the facts of that case would be interesting. Two precious antique pillars of sand stone were deposited in the court of Ilaqa Magistrate, Karnal, as stolen property. One N.N. Malik filed an application before the Magistrate seeking custody of the pillars to make in detail study on the pretext that he was a research scholar. It appears that the then Chief Judicial Magistrate of Karnal, (H.L. Mehra), was a friend of Malik. At the instance of Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given to Malik on his executing a bond. About three months thereafter Malik deposited two pillars in the court of Ilaqa Magistrate, Karnal. After sometime it came to light that the pillars returned by Malik were not the original genuine pillars but were fake pillars. An F.I.R. was lodged against both Malik and Mehra under Section 120-B read with Sections 406 and 420 of I.P.C. alleging conspiracy to commit criminal breach of trust and cheating. The C.B.I. after necessary investigation filed charge sheet in the court of Special Magistrate, Ambala, against both of them. Ultimately on the application of the public prosecutor the case was permitted to be withdrawn and the accused were discharged. Sometime later the original genuine pillars were found in London which led to registering an F.I.R. in Delhi under Section 120-B read with Section 411 of I.P.C, and Section 25(1) of the Antiquities and Art Treasures Act, 1972 against three persons who were brothers (referred to as 'Narangs'). The gravamen of the charge against them was that they, Malik and Mehra, conspired together to obtain custody of the genuine pillars, got duplicate pillars made by experienced sculptors and had them substituted with a view to smuggle out the original genuine pillars to London. After issuing process for appearance of Narangs by the Magistrate at Delhi, an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before Ambala Court, therefore, the Delhi Court acted without jurisdiction in taking cognizance of the case on the basis of illegal investigation and the report forwarded by the police. The Magistrate referred the case to the High Court and Narangs also filed an application under Section 482 of Cr.P.C. to quash the proceedings. The High Court declined to quash the proceedings, dismissed the application of Narangs and thus answered the reference. On appeal to this Court it was contended that the subject-matter of the two F.I.Rs. and two charge-sheets being the same there was an implied bar on the power of the police to investigate into the subsequent F.I.R. and the court at Delhi to take cognizance upon the report of such information. This Court indicated that the real question was whether the two conspiracies were in substance and truth the same and held that the conspiracies in the two cases were not identical. It appears to us 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 - the first was a smaller conspiracy and the second was the larger conspiracy as it turned out eventually. It was pointed out that even under the Code of 1898 after filing of final report there could be further investigation and forwarding of further report. The 1973 Cr.P.C. specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 of Cr.P.C. and forwarding of further report or reports to the concerned Magistrate under Section 173(8) of Cr.P.C. It follows that if the gravamen of the charges in the two FIRs - the first and the second - is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr.P.C. will be irregular and the Court can not take cognizance of the same. T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 10 On a perusal of the judgment of this Court in M.Krishna vs. State of Karnataka [1999 (3) SCC 247], we do not find anything contra to what is stated above. The case is distinguishable on facts of that case. In the case on hand the second FIR is filed in respect of the same incident and on the same facts after about three years. The right of the police to investigate into a cognizable offence is a statutory right over which the court does not possess any supervisory jurisdiction under the Cr.P.C.. In Emperor vs. Khwaja Nazir Ahmad [AIR (32) 1945 PC 18], the Privy Council spelt out the power of the investigation of the police, as follows : "In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court." This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well recognised limitation. One of them, is pointed out by the Privy Council, thus : "if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation." Where the police transgresses its statutory power of investigation the High Court under Section 482 Cr.P.C. or Article 226/227 of the Constitution and this Court in appropriate case can interdict the investigation to prevent abuse of the process of the Court or otherwise to secure the ends of justice. In State of Haryana vs. Bhajan Lal & Ors. [1992 Suppl.(1) SCC 335], after exhaustive consideration of the decisions of this Court in State of West Bengal vs. Swapan Kumar Guha (1982) 1 SCC 561; S.N.Sharma vs. Bipen Kumar Tiwari (1970) 1 SCC 653; R.P.Kapur vs. State of Punjab (1960) 3 SCR 388; Nandini Satpathy vs. P.L.Dani (1978) 2 SCC 424 and Prabhu Dayal Deorah vs. District Magistrate, Kamrup (1974) 1 SCC 103], approving the judgment of the Privy Council in Khwaja Nazir Ahmad's case (supra), it was concluded in para 102 as follows : "In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 11 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge." The above list, as noted, is illustrative and not exhaustive. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view 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 respect of which pursuant to the first FIR either investigation is underway 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 Cr.P.C. or under Article 226/227 of the Constitution. Coming to the facts of this case, which are not free from political overtones, the incident which gave rise to registering of FIRs, took place on November 25, 1994 on the occasion of the visit of the T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 12 Minister to Alakkandy Complex at Kuthuparamba, Tellicherry Road (Kannur District) for inauguration of the evening branch of the Co-operative Urban Bank. The events that developed there led to firing by police at two places -- (i) in the vicinity of town hall for which FIR was lodged and Crime No.353/94 under Sections 143, 147, 148, 332, 353, 324, 307 read with Section 149 IPC, Section 3(2)(e) of P.D.P.P.Act and Sections 3 and 5 of Explosive Substances Act, was registered and (ii) in the vicinity of the Police Station, Kuthuparamba in respect of which FIR was filed and Crime No.354/94 of Kuthuparamba Police Station under Sections 143, 147, 148, 307 and 427 read with Section 149 IPC and Section 3(2)(e) of P.D.P.P.Act was registered. While the investigations on the basis of the said FIRs were pending, the report of Mr.K.Padmanabhan Nair, Inquiry Commission, was submitted to the Government. On June 30, 1997, the Additional Chief Secretary wrote to the Director-General of Police that the Government had accepted the report of the Commission and directed that the legal action be taken against those responsible on the basis of the findings of the Commission. On July 2, 1997, the Director- General of Police, however, wrote to Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a senior officer. Two days thereafter, the Inspector General of Police added his own remarks - "firing without justification by which people were killed amounted to murder" - and ordered the Station House Officer to register a case under the appropriate sections and forward the investigation copy of the FIR to the Deputy Inspector General of Police (North Zone) for urgent personal investigation. On the date when the Additional Chief Secretary wrote to the Director-General of Police, the investigations initiated in the said two crimes relating to the same incident were in progress. The investigating agency should have taken advantage of the report of the Commission for a proper further investigation into the case. On the facts which might come to light during investigation, if necessary, the investigating agency should have altered the offences under appropriate section of the relevant Acts and concluded the investigations. In view of the orders of the Director General of Police to register a case and on the further direction of the Inspector General of Police, the officer in-charge of Police Station registered Crime No.268/97 of Kuthuparamba Police Station. A comparison and critical examination of the FIRs in Crime Nos.353 & 354 of 1994 on one hand and FIR in Crime No.268/97 on the other, discloses that the date and place of occurrence are the same; there is alluding reference to the deaths caused due to police firing in the FIRs in Crime Nos. 353 and 354 of 1994. In any event, that fact was evident on the scene of occurrence. The narration of events, which we need not repeat here, are almost the same. The additional averments in Crime No.268/97 are based on the findings in the report of the Commission. Having regard to the test laid down by this Court in Narangs'case (supra), with which we are in respectful agreement, we find that in truth and substance the essence of the offence in Crime Nos. 353 and 354 of 1994 is the same as in Crime No. 268 of 1997 of Kuthuparamba Police Station. In our view, in sending information in regard to the same incident, duly enclosing a copy of the report of the commission of inquiry, to the Inspector General of Police for appropriate action, the Additional Chief Secretary adopted the right course of action. Perhaps the endorsement of the Inspector General of Police for registration of a case misled the subordinate police officers and the said letter with regard to the incident of November 25, 1994 at Kuthuparamba was registered again under Section 154 of Cr.P.C. which would be the second FIR and, in our opinion, on the facts of this case, was irregular and a fresh investigation by the investigating agency was unwarranted and illegal. On that date the investigations in the earlier cases (Crime Nos.353 and 354 of 1994) were pending. The correct course of action should have been to take note of the findings and the contents of the report, T.T.Antony vs State Of Kerala & Ors on 12 July, 2001 Indian Kanoon - http://indiankanoon.org/doc/1974324/ 13 streamline the investigation to ascertain the true and correct facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 Cr.P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) Cr.P.C. to the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No.353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law