Supreme Court - Daily Orders
Manoj Kumar vs The State Of Uttarakhand on 22 May, 2014
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2122 OF 2010
Manoj Kumar ... Appellants
Versus
State of Uttrakhand ...Respondent
ORD ER
Heard Mr. S.P. Singh, learned senior counsel appearing for
the appellant and Mr. Ashok Kumar Sharma, learned counsel
appearing for the respondent.
It is submitted by Mr. Singh, learned senior counsel for the
appellant that Ved Prakash, father of the deceased had submitted
an application on 24.8.1993 alleging, inter alia, that on that day
about 7.10 a.m. he and his wife had left for their duties and his
dauther Km. Bharti was left alone at the house and when he
came back from the college, he found his daughter hanging from
the roof. He reported to the police by way of application and it
was treated as an FIR. Elaborating the submissions, it is urged
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by him that on 26.8.1993 Ved Prakash coming to know certain
aspects from one Vinod Sharma, PW-2, about the involvement of
Manoj Kumar, the appellant herein, who had come out from the
room of Ved Prakash, submitted another report on 26.8.1993 to
the Station House Officer, Police Station, Mangalore, giving the
details about the fact that was disclosed to him by PW-2. In this
backdrop, it is put forth by learned counsel for the appellant that
there are two FIRs in respect of the same transaction and,
therefore, the investigation having carried on the base of the
second FIR, the trial is totally vitiated. Learned counsel for the
appellant has referred to certain authorities which we shall advert
to a later stage.
Mr. Ashok Kumar Sharma, learned counsel appearing for
the State, submitted that it was not a second FIR and, in any
case, it would not vitiate the trial. It is his submission that it will
come within the spectrum of investigation and when the accused
has gone through the whole gamut of trial, he is not entitled to
put forth such a submission on the ground that the trial is
vitiated. Learned counsel for the State would say that in any
event it can be a curable irregularity and not an illegality which
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would make the trial null and void. It is put forth by him
assuming investigation is carried on, on the basis of a 2 nd FIR,
the matter should be left for the trial and it should be tested on
the touchstone of prejudiced.
Presently, we shall refer to certain authorities cited at the
bar. In T.T. Antony v. Sta te of Kera l a and others 1 , while
dealing with the legal validity of lodging of a second FIR, the
Court posed the following question: -
"(i) Whether registration of a fresh case, Crime No. 268
of 1997, Kuthuparamba Police Station on the basis of the
letter of the DGP dated 2.7.1997 which is in the nature of
the second FIR under Section 154 CrPC, is valid and it can
form the basis of a fresh investigation;"
And thereafter proceeded to rule as follows: -
"17. Sub- section (1) of Section 154 CrPC 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 CrPC 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
1 (2001) 6 SCC 181
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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. Sub- section (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 CrPC, 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.
18. An information given under sub- section (1) of Section
154 CrPC is commonly known as first information report
(FIR) though this term is not used in the Code. It is a very
important document. And as its nickname 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 in motion and marks the commencement of the
investigation which ends up with the formation of opinion
under Section 169 or 170 CrPC, as the case may be, and
forwarding of a police report under Section 173 CrPC. 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 CrPC. Apart from 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 -- FIR postulated by Section
154 CrPC. All other informations made orally or in writing
after the commencement of the investigation into the
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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 CrPC. No such
information / s tatement can properly be treated as an FIR
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 CrPC. Take a case where an FIR
mentions cognizable offence under Section 307 or 326 IPC
and the investigating agency learns during the investigation
or receives fresh information that the victim died, no fresh
FIR under Section 302 IPC 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) CrPC, as the case may be. It is of
course permissible for the investigating officer to send up a
report to the Magistrate concerned even earlier that
investigation is being directed against the person suspected
to be the accused."
After so stating, the two- Judge Bench opined that an officer-
in- charge of a police station has to commence investigation as
provided under Section 156 or 157 of the Code of Criminal
Procedure (for short "the Code") on the basis of entry of the First
Information Report, on coming to know of the commission of a
cognizable offence and on completion of investigation and on the
basis of evidence collected, he has to form an opinion under
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Section 169 or 170 of the Code as the case may be, and forward
his report to the Magistrate concerned under Section 173(2) of the
Code. Thereafter, the Court proceeded to state that even after
filing of 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 leave of
the Court and if collects further evidence, oral or documentary,
he is obliged to forward the same with one or more reports as
contemplated under sub- section (8) of Section 173 of the Code.
Elaborating further, it has been held that: -
"20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 CrPC only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC. Thus
there can be no second FIR and consequently there can be
no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more
cognizable offences. 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 the same
occurrence and file one or more reports as provided in
Section 173 CrPC."
The Court distinguished the decision in Ram Lal Nara ng v.
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Sta te (Delhi Admn.)2 and after adverting to the facts in detail,
opined thus: -
"This Court 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 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 a 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 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 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."
In Upka r Singh v. Ved Pra k as h and others 3 , a three-
Judge Bench adverted to the facts, addressed the issue
pertaining to correctness of law in T.T. Anton y (supra) and
observed as follows: -
"17. It is clear from the words emphasised hereinabove in
the above quotation, this Court in the case of T.T. Antony v.
State of Kerala has not excluded the registration of a
complaint in the nature of a counter- case from the purview
of the Code. In our opinion, this Court in that case only held
2 (1979) 2 SCC 322
3 (2004) 13 SCC 292
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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."
While dealing with Ram La l Nara ng (supra) the Court
observed 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 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 4 . 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."
In Ka r i Choudh a r y v. Sit a Devi 5 an FIR was lodged by the
first respondent that few persons from outside entered the
bedroom of her daughter- in- law and committed her murder.
4 (1979) 2 SCC 322
5 (2002) 1 SCC 714
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During the process of investigation, the police formed an opinion
that the murder of the deceased had taken place in a manner
totally different from the version stated by the first respondent in
the FIR, for the police found that the murder was committed
pursuant to a conspiracy hatched by her mother- in- law. The
investigating agency sent a report to the Court that the
allegations of earlier FIR were false and continued the
investigation informing the court that they had registered another
FIR. The first FIR filed a protest complaint stating that the
allegations in the first FIR were correct. The Chief Judicial
Magistrate rejected the same. The High Court in the first criminal
revision directed the Magistrate to conduct an enquiry under
Section 202 of the Code. The police, in the mean time, proceeded
with the investigation on the new discovery and finally concluded
the investigation and filed the charge sheet on 31.3.2000. In the
said charge sheet the first respondent and her two other
daughters- in- law, her son and few others were arrayed as
accused. The Chief Judicial Magistrate committed the case to the
Court of Session which thereafter framed the charges. At that
juncture, the first respondent approached the High Court for
quashing of the criminal proceeding and the High Court quashed
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the same. When the said order was assailed before this Court,
the question arose whether the second FIR could have been
registered. Dealing with the said contention, the learned Judges
observed thus: -
"Of course the legal position is 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 different FIRs and
investigation can be carried on under both of them by the
same investigating agency. Even that apart, the report
submitted to the court styling it as FIR No. 208 of 1998 need
be considered as an information submitted to the court
regarding the new discovery made by the police during
investigation that persons not named in FIR No. 135 are the
real culprits. To quash the said proceedings merely on the
ground that final report had been laid in FIR No. 135 is, to
say the least, too technical. The ultimate object of every
investigation is to find out whether the offences alleged have
been committed and, if so, who have committed it."
In Ami tb h a i Ani lc h a n d r a Shah v. Centr a l Bureau of
Investiga t i o n and anot he r 6 , the two Judge- Bench distinguished
the decisions in Nir m a l Singh Ka h lo n v. Sta te of Punjab 7 ,
Ram La l Nara ng (supra), Upka r Singh (supra) and Ka r i
Choudh a r y (supra) and thereafter proceeded to state as follows: -
"56. The ratio laid down in Kari Choudhary case is heavily
relied on by the learned ASG appearing for CBI. In that
decision, it was held that when there are two rival versions
in respect of the same episode, they would normally take the
shape of two different FIRs and investigation can be carried
6 (2013) 6 SCC 348
7 (2009) 1 SCC 441
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on under both of them by the same investigating agency.
While there is no quarrel as to the above proposition, after
carefully considering the factual position, we are of the view
that the said decision is not helpful to the case on hand."
While recording the conclusions, the Court opined thus: -
"58.2. The various provisions of the Code of Criminal
Procedure clearly show that an officer- in- charge of a police
station has to commence investigation as provided in Section
156 or 157 of the Code on the basis of entry of the first
information report, on coming to know of the commission of
cognizable offence. On completion of investigation and on the
basis of the evidence collected, the investigating officer has
to form an opinion under Section 169 or 170 of the Code and
forward his report to the Magistrate concerned under Section
173(2) of the Code."
"58.5. The first information report is a report which gives
first information with regard to any offence. There cannot be
second FIR in respect of the same offence/event because
whenever any further information is received by the
investigating agency, it is always in furtherance of the first
FIR."
Taking note of the aforesaid decisions, we are obliged to
state that an FIR is neither a piece of substantive evidence nor
does it form the spine of a criminal case. It basically sets the
criminal law in motion for the purpose of investigation relating to
an offence or offences with regard to an incident. It is noticeable
that a particular incident can have number of offences forming a
different part of the same transaction and some times may
constitute distinct crimes which would come in a larger
spectrum. That apart, there can be a chain of events. In certain
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cases, counter FIRs are lodged. There is no illegality in lodging a
counter FIR as per the pronouncements in T.T. Antony (supra)
and Upka r Singh (supra), and investigation can be carried out in
that regard. What is observed in certain cases, as we find, when
an investigation continues on the basis of the second FIR,
pertaining to the same transaction, on being challenged the whole
investigation is quashed. There can be no shadow of doubt that
registration of an FIR or a second matter is done by the police
authorities. The informant or victim, in reality, brings certain
facts which he comes to know at a later stage to the knowledge of
the investigating agency and the investigating agency without
recording a statement under Section 161 of the Code of Criminal
Procedure or treating it as a part of a material collected through
investigation records an FIR. As is seen, if an investigation
proceeds on that basis, it has been made liable for quashment.
The principle in criminal jurisprudence requires a fair and
truthful investigation. If an investigating agency which has been
conferred the power to investigate on the basis of an FIR, if a
second FIR as regards the same transaction is introduced, as
viewed, it is likely to be abused, i.e. keeping in mind the interest
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of the accused. From the point of view of the victim when such
information comes within the knowledge of the Investigating
Officer, he can treat it as a part of continuing investigation under
the Code and eventually file the charge sheet or an additional
charge sheet as contemplated under Section 173 of the Code.
The interests of both are involved. A fair investigation,
conceptually speaking, is acceptable facet of criminal
jurisprudence, similarly it is also the duty of the courts to see
whether the investigation carried out really causes prejudice to
the accused requiring the court to exercise the power under
Section 482 or Article 226 of the Constitution to quash the same,
or it has looked into the interest of both the accused and the
victim and, therefore, it should be left for the trial Court to see
the veracity of the truth of allegations that has come out in
investigation.
The question that emerges whether such an illegality is
committed by an Investigating Officer by treating a further
material or information as a second FIR warranting obliteration of
the whole investigation to destroy the interest of the victim in
entirety, or in such cases it should be left to the trial Court to test
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the propriety and veracity of the same on the touchstone of two
concepts, namely, prejudice to the accused; and the
determination of the guilt of the accused on the anvil of the
evidence brought on record which is creditworthy to protect the
interest of the collective at large. One can cite an example. In a
case of a group fight many are done to death but dead body of
one is found and an FIR is lodged in respect of one death under
Section 302 read with other sections of the Indian Penal Code
and the investigation commences. At a later stage, either the
informant or someone finds the skeletons of the dead bodies at a
different place, supposed to be missing, and he reports to the
police and the police treat it as a second FIR and carries on the
investigation. Whether in these circumstances the second FIR
should be quashed and no investigation should be allowed to
continue or if any investigation has commenced and certain
material has come against some persons, they should be allowed
to go scot- free solely on the ground that investigation in respect of
second FIR is not tenable.
In view of the aforesaid analysis, whether the FIR and the
investigation in pursuance thereof should be straightway
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quashed or should it require a scrutiny during trial of the
permissible matter of prejudice, and truthfulness of the evidence
collected on the basis of second FIR. That is the fundamental
question.
Therefore, we are of the considered opinion that the decision
in Upka r Singh (supra) and the decisions that express the
similar legal propositions are required to be scrutinized and,
accordingly, we refer the lis to a larger Bench.
Let the papers be placed before the Hon’ble the Chief Justice
of India for constitution of appropriate larger Bench.
..............................J
(DIPAK MISRA)
NEW DELHI; .............................J.
MAY 22, 2014. (N.V. RAMANA)
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ITEM NO.103 COURT NO.5 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 2122 OF 2010
MANOJ KUMAR Appellant (s)
VERSUS
STATE OF UTTRAKAHND Respondent(s)
(With appln(s) for permission to file additional documents,exemption
from filing O.T. and office report)
Date: 22/05/2014 This Appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE DIPAK MISRA
HON’BLE MR. JUSTICE N.V. RAMANA
(VACATION BENCH)
For Appellant(s) Mr. S.P. Singh, Sr.Adv.
Mr. Parful Bharuka, Adv.
Mr. S.S.Nehra, Adv.
Ms. Barkha, Adv.
For Respondent(s) Mr. Ashok Kumar Sharma, Adv.
Mr. Vikalp Mudgal, Adv.
Mr. Mukesh Verma, Adv.
Mr. Jatinder Kumar Bhatia, Adv.
UPON hearing counsel the Court made the following
O R D E R
The matter is referred to larger Bench in terms of the signed order.
(NAVEEN KUMAR) (RENUKA SADANA) COURT MASTER COURT MASTER (Signed order is placed on the file)