Allahabad High Court
Arvind Singh And 4 Others vs State Of U.P. And 3 Others on 17 July, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:142623-DB Reserved A.F.R. Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 7581 of 2023 Petitioner :- Arvind Singh And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Brajesh Kumar Dwivedi Counsel for Respondent :- G.A.,Alok Krishan Tripathi,Utpal Singh Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Brajesh Kumar Dwivedi, learned counsel for the petitioners, Sri Alok Krishan Tripathi, learned counsel for the informant and Smt. Manju Thakur, learned A.G.A. appearing for the State-respondents.
2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 06.04.2023 registered as Case Crime No. 216 of 2023 under Sections 366, 120-B I.P.C., Police Station- Jeanpur, District- Azamgarh, and for a direction to the respondents not to arrest the petitioners pursuant to impugned first information report.
3. It has been submitted by learned counsel for the petitioners that the informant/respondent no. 4, Ram Bilas Rajbhar had given an application u/s 156 (3) Cr.P.C. regarding alleged incident dated 28.12.2022 at 11.30 hours on which Judicial Magistrate, Azamgarh, passed an order dated 03.04.2023 whereby first information report against the petitioners was lodged on 06.04.2023 as Case Crime No. 216 of 2023 u/s 366, 120-B I.P.C., P.S.- Jeanpur, District- Azamgarh.
4. It has been stated in the first information report that petitioner no. 1, Arvind Singh, is the ex-Gram Pradhan of village- Rasoolpur, District- Azamgarh. His bonded labour, Ram Nayan Ram's mother, Dulari Devi is the present Gram Pradhan of his village. The whole work of Gram Pradhan is looked after by accused/petitioner no. 1, Arvind Singh. The informant has submitted complaint to the higher authorities against the previous Gram Pradhan for enquiry regarding development works carried on during the period of aforesaid Gram Pradhan. Due to this enmity, accused persons, Arvind Singh, Ajeet Singh, Ram Nayan Ram, Ram Bachan Rajbhar and Naitik, hatched conspiracy to humiliate the informant and cause damage to his social reputation. In furtherance of this, accused persons on 28.12.2022 at 11.30 o'clock forcibly kidnapped informant's daughter, Annu from Banaura Road and carried her in Scorpio vehicle while she was returning home after appearing in B.Sc. 1st year examination in Badrinath Degree College, Kanjra Dilshapur. The incident was witnessed by Jitendra Singh and Lal Bahadur Yadav of his village. The informant has expressed his apprehension that the accused persons may sell or murder his daughter after her abduction. The same informant, Ram Bilas Rajbhar had lodged a first information report dated 28.12.2022 at 22.02 hours on the very same day of the incident which was registered as Case Crime No. 764 of 2022 u/s 366 I.P.C. at P.S.- Jeanpur, District- Azamgarh against petitioner no. 5, Naitik.
5. Learned counsel for the petitioners has submitted that the victim, namely, Annu was a major aged about 18 years 6 months at the time of the incident. Her date of birth being 02.07.2004. The petitioners have filed High School Marksheet of the victim which is annexed as Annexure No. 4 to the writ petition. It has also been submitted that after lodging of the previous first information report, the victim, Annu Rajbhar along with accused, Naitik, appeared before Station House Officer, Police Station- Jeanpur, District- Azamgarh and gave an application on 11.01.2023 admitting that the alleged incident dated 28.12.2022 took place with the free consent of the victim, Annu Rajbhar and that they were living together. The victim, Annu Rajbhar, in her statement u/s 161 Cr.P.C. before the Investigating Officer and in her statement dated 28.01.2023 u/s 164 Cr.P.C. which was recorded by the Magistrate concerned has stated that she left her home with her own sweet will and had gone with accused, Naitik to Gujarat for performing marriage with him.
6. After investigation, on the basis of statements of victim u/s 161 and 164 Cr.P.C. and that of independent witness, Sanjay Rajbhar and finding that the victim Annu was major and had left her house on her own sweet will and had married with accused, Naitik, the Investigating Officer submitted final report in Case Crime No. 764 of 2022 u/s 366 I.P.C. at P.S.- Jeanpur, District- Azamgarh on 19.01.2023. The petitioners have filed the statements u/s 161 and 164 Cr.P.C. of the victim and independent witness, Sanjay Rajbhar and the final report as Annexure Nos. 6, 8, 9 and 10 to the writ petition.
7. Without disclosing the fact that informant had lodged first information report on 28.12.2022 regarding the same incident in which after investigation, the Investigating Officer had submitted final report on 19.01.2023, submitted application u/s 156(3) Cr.P.C. regarding the incident dated 28.12.2022 and got a F.I.R. lodged on 06.04.2023 adding 4 other accused persons, apart from previous co-accused, Naitik, two first information reports cannot be lodged for the same incident dated 28.12.2022. The informant had lodged second F.I.R. dated 06.04.2023 for harassing the petitioners after 3 months of the lodging of the previous first information report in which final report was submitted by the Investigating Officer in the investigation.
8. It has also been submitted by learned counsel for the petitioners that considering the final report submitted in the previous first information report, no offence u/s 366, 120-B I.P.C. is made out against the petitioners. He has also placed reliance on the following judgements of the Hon'ble Apex Court :-
(i) Kari Choudhary Vs. Mst. Sita Devi and Others, (2002) 1 SCC 714
(ii) T.T. Antony Vs. State of Kerala & Ors., Appeal (Crl.) 689 of 2001, Special Leave Petition (Crl.) 1522 of 2000
9. In the first information report dated 28.12.2022 registered as Case Crime No. 764 of 2022 lodged in P.S.- Jeanpur, the informant, Ram Bilas Rajbhar has stated that her daughter, Annu Rajbhar aged about 18 years 6 months who was studying in B.Sc. - I in Badrinath Degree College had gone to college on 28.12.2022 for giving examination but she did not return back home in the evening. The informant had firm belief that accused, Naitik S/o Ram Bachan, resident of village- Rasoolpur has taken and enticed her daughter away.
10. In the case of Kari Choudhary (supra), the Apex Court has held that there cannot be two F.I.R.s against the same accused in respect of the same case. But when there are two rival versions in respect of same episode, they would normally take the shape of two different F.I.R.s and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court by way of the subsequent F.I.R. 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 the first F.I.R. are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in the first F.I.R. is, to say the least, too technical. Even otherwise, the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173(8) of the Code.
11. In the case of T.T. Antony (supra), the Apex Court has discussed the law relating to lodging of F.I.R. and registration of the F.I.R. and the subsequent steps to be taken by the investigating agency in pursuance thereof as well as the status of second F.I.R. lodged regarding the same incident as follows :-
"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;
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 sub-
section (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. 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 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 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."
12. Considering the facts of the present case in the light of the law propounded by the Apex Court in T.T. Antony (supra), we find that the informant, Ram Bilas Rajbhar had got first information report dated 28.12.2022 registered at 22.02 hours in P.S.- Jeanpur as Case Crime No. 764 of 2022 u/s 366 I.P.C. regarding the abduction of his daughter, Annu against Naitik. After investigation, the Investigating Officer did not find any evidence regarding commission of offence against accused, Naitik and submitted final report. The informant did not pursue the legal remedy available to him under law against submission of final report in a case registered by him. He did submit application u/s 156 (3) Cr.P.C. on 21.03.2023 regarding the same incident before the Magistrate concerned and got the second F.I.R. registered as Case Crime No. 216 of 2023 under Sections 366, 120-B I.P.C. in Police Station- Jeanpur, on 06.04.2023 against the petitioners who included the accused of the previous F.I.R, Naitik and 4 other accused persons. The second F.I.R. regarding the occurrence was not maintainable under the law. The second F.I.R. regarding the same incident is barred by the law propounded by the Hon'ble Apex Court. The second F.I.R. was also not maintainable on the ground that the informant had adequate remedy under the law against the final report submitted by the Investigating Officer in the first F.I.R. lodged by him. In State of Haryana Vs. Bhajan Lal & Ors., (1992) Suppl. (1) SCC 335, the Apex Court has held as sixth ground for quashing of the F.I.R. as :
(6) Where there is an express legal bare 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.
13. Applying the aforesaid principles propounded by the Apex Court in Bhajan Lal (supra), the second F.I.R. lodged by the informant, Ram Bilas Rajbhar as Case Crime No. 216 of 2023 under Sections 366, 120-B I.P.C., Police Station- Jeanpur, District- Azamgarh, is not maintainable and is liable to be quashed.
14. In view of the above, the writ petition succeeds and is allowed. The First Information Report dated 06.04.2023 registered as Case Crime No. 216 of 2023, under Section 366, 120-B I.P.C., P.S.- Jeanpur, District- Azamgarh, as well as all consequential proceedings are hereby quashed.
Order Date :- 17.07.2023 KS