Himachal Pradesh High Court
Satish Thakur vs State Of H.P. And Ors on 12 August, 2024
Neutral Citation No. ( 2024:HHC:6777 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No 690 of 2019.
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Reserved on: 25.07.2024.
Date of Decision: 12.08.2024.
Satish Thakur ...Petitioner
Versus
State of H.P. and Ors. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Naveen K. Bhalla, Advocate. For the Respondents : Ms. Ayushi Negi, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of FIR No. 1 of 2013, dated 26.01.2013, for the commission of offences punishable under Sections 420, 467, 468, and 471 read with Section 120B of the Indian Penal Code (IPC) registered with the Police Station, State Vigilance and Anti Corruption Bureau Solan, District Solan, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 22. It has been asserted that the petitioner has retired as District Food and Safety Officer Solan, Sirmour and Una on .
25.03.2017. A false FIR No. 1 of 2013, dated 26.01.2013 was registered before the Police Station State Vigilance and Anti Corruption Bureau, Solan, District Solan, H.P. against him. Earlier FIR No. 6 was registered in Police Station Kandaghat, District Solan for the commission of offences punishable under Sections 468, 471 and 420 of IPC on 01.02.1997. The police conducted an investigation and filed a cancellation report before the learned Judicial Magistrate First Class, Kandaghat, District Solan, (JMFC) H.P. The learned JMFC accepted the cancellation report vide order dated 07.11.1998. The police registered a second FIR, which is impermissible. The allegations in both FIRs are the same. The registration of the second FIR and re-investigation amounts to illegality. The police cannot conduct fresh investigation. Therefore, it was prayed that the present petition be allowed and the FIR be quashed.
3. The petition is opposed by filing a reply and making preliminary submission regarding the lack of maintainability. It was asserted that the petitioner was appointed as a ad hoc basis for six months in Composite Testing Lab (CTL) Kandaghat. His ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 3 services were regularized w.e.f. 16.04.1987. The basic requirement for a Food Inspector is B.Sc. The petitioner underwent training .
w.e.f. 01.06.1985 till 31.08.1985 and was appointed as a Food Inspector w.e.f. 22.10.2001. The petitioner submitted a certificate showing that he had obtained a B.Sc. degree, however, there was a difference in various certificates submitted by the petitioner. An enquiry was conducted to ascertain the genuineness of the certificates. The matter was reported to the police and FIR No. 6 of 1997, dated 01.02.1997, was registered in Police Station Kandaghat.
The police prepared a cancellation report stating that the certificate bearing roll number 27397 was submitted by the petitioner which was genuine. The Supervisory Officer had given some guidelines with respect to investigation but those were not followed. The learned Public Prosecutor also raised certain objections, which were not considered. The complainant also did not appear before the learned Trial Court and the cancellation report was accepted.
Subsequently, new facts came to light which were verified. It was found that the certificates issued by the petitioner were not genuine and were obtained in connivance with officials/officers of Magadh University. The police registered the FIR and conducted the investigation. The earlier FIR was not properly investigated. The ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 4 record in different States was not examined. Therefore, it was prayed that the present petition be dismissed.
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4. A rejoinder denying the contents of the reply and affirming those of the petition was filed.
5. I have heard Mr. Naveen K. Bhalla, learned counsel for the petitioner and Ms. Ayushi Negi, learned Deputy Advocate
6. to General for the respondent/State.
Mr. Naveen K. Bhalla, learned counsel for the petitioner submitted that it is impermissible to register the second FIR and the remedy of the police lies in conducting further investigation into the earlier FIR. He relied upon the judgments of State of Rajasthan versus Aruna Devi (1995) 1 SCC 1, T.T. Antony v. State of Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048: 2001 SCC OnLine SC 805, Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413: (2008) 2 SCC (Cri) 631: 2008 SCC OnLine SC 882 and State through Central Bureau of Investigation versus Hemendhra Reddy 2023 (7) SCR 134:
2023 SCC OnLine SC 515 in support of his submission.
7. Ms. Ayushi Negi, learned Deputy Advocate General, for the respondent/State submitted that there is no prohibition in registering the second FIR after the discovery of some material that ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 5 did not exist at the time of registration of the earlier FIR. There is no bar in the registration of a second FIR at the instance of a .
different person. She relied upon the judgments of the Hon'ble Supreme Court in P. Sreekumar v. State of Kerala, (2018) 4 SCC 579:
(2018) 2 SCC (Cri) 578: 2018 SCC OnLine SC and Gujrat High Court in Kanhiya Lal versus State of Gujrat in Special Criminal Application No. 7756 of 2020 decided on 24.01.2022 in support of her submission.
8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
9. In T.T. Antony (supra) the police registered the FIR regarding an incident that occurred on 25.11.1994. The matter was enquired under Section 3(1) of the Commission of Enquiry Act 1952.
The Commission submitted a report and another FIR was registered in the matter. The registration of the second FIR was challenged. The Hon'ble Supreme Court held that there can be only one FIR and no subsequent FIR can be registered. It was observed:
"17. Sub-section (1) of Section 154 CrPC contains four mandates for an officer in charge of a police station. The first enjoins that every piece of information relating to the 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 ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 6 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 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 the investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station about that offence.
18. An information given under sub-section (1) of Section 154 CrPC is commonly known as the 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 the 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 ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 7 and this is implied in Section 154 CrPC. Apart from 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 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/statement 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 needs to 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 was killed by an unknown person or knowing that W was killed by his mother or sister, H owns up to the responsibility and during the investigation, the truth is detected; it does not require the 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 the investigation is being directed against the person suspected to be the accused.
19. The scheme of CrPC is that an officer in charge of a police station has to commence an investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of the investigation and ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 8 on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 CrPC.
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."
10. It was held in Ramachandran (supra) that the police have a right to carry out further investigation but they cannot carry out fresh investigations. It was observed: --
"7. At this juncture, it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of the ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 9 investigation under sub-section (2) of Section 173 of the Code, the police have the right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. .
Chandrasekhar v. State of Kerala [(1998) 5 SCC 223: 1998 SCC (Cri) 1291]. It was, inter alia, observed as follows : (SCC p.
237, para 24) "24. The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; supplemental'. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a 'further' report or reports-- and not fresh report or reports--regarding the 'further' evidence obtained during such investigation."
8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of a fresh investigation, there can be further investigation if required under Section 173(8) of the Code.
The same can be done by CB CID as directed by the High Court."
11. This judgment answers the submissions of Ms. Ayushi Negi, learned Deputy Advocate General that it is permissible to register the second FIR when some new facts come to the notice of the Investigating Officer. It is impermissible to register the second FIR but the Investigating Agency can always take note of the ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 10 subsequent facts and make them part of the report submitted by them to the Court under Section 173 of the Cr.P.C.
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12. In P. Sreekumar (supra) the Hon'ble Supreme Court held that the counter FIR can always be registered. It was observed on page 584:-
"28. Their Lordships after examining all the previous case-
laws on the subject laid down the following proposition of law in the following words speaking through N. Santosh Hegde, J.: (Upkar Singh case [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], SCC pp. 299-300, paras 23-25) "23. Be that as it may, if the law laid down by this Court in the T.T. Antony case [T.T. Antony v. State of Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048] is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if, in regard to a crime committed by the real accused, he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in the T.T. Antony case [T.T. Antony v. State of Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048] this Court did not consider the legal right of an aggrieved person to file a counterclaim, on the contrary from the observations found in the said ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 11 judgment it clearly indicates that filing a counter-
complaint is permissible.
25. In the instant case, it is seen in regard to the incident .
which took place on 20-5-1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value."
29. The aforesaid principle was reiterated by this Court (two- Judge Bench) in Surender Kaushik v. State of U.P. [Surender Kaushik v. State of U.P., (2013) 5 SCC 148 : (2013) 2 SCC (Cri) 953] in the following words: (SCC p. 158, para 24) "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 [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292: 2005 SCC (Cri) 211], the prohibition does not ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 12 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 do take different shapes and in that event, lodgment of two FIRs .
is permissible."
30. Keeping the aforesaid principle of law in mind when we examine the facts of the case at hand, we find that the second FIR filed by the appellant against Respondent 3 though related to the same incident for which the first FIR was filed by Respondent 2 against the appellant-Respondent 3 and three bank officials, yet the second FIR being in the nature of a counter-complaint against Respondent 3 was legally maintainable and could be entertained for being tried on its merits."
13. In the present case no counter FIR was lodged and the cited judgment will not help the respondent.
14. This matter was considered by the Hon'ble Supreme Court in Hemendhra Reddy (supra) and it was held that even if the police have filed the closure report, it is not precluded from conducting further investigation under Section 173(8) of Cr.P.C.
The conclusions of the Court were as under:
"54. We sum up our conclusions as follows:--
(i) An order of the Magistrate taking cognizance of offences on a police report is a judicial order.
(ii) An order of a Magistrate ordering a further investigation on receiving a police report is a non- judicial order.
(iii) An order of a Magistrate accepting a negative police report after hearing the parties is a judicial order.::: Downloaded on - 12/08/2024 20:32:02 :::CIS
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(iv) An order of a Magistrate recording the report of the police as "undetectable" is not a judicial order.
(v) The power of the Magistrate to permit the police to .
further investigate the case as provided under Section 173(8) of the Code is an independent power and the exercise of the said power shall not amount to varying, modifying, or cancelling the earlier order of the Magistrate on the report of the police, notwithstanding the fact whether the said earlier order is a judicial order or a non-judicial order of the Magistrate.
(vi) For seeking permission for further investigation under Section 173(8) of Cr.P.C. by the police, the earlier order, either judicial or non-judicial, passed by the Magistrate on the report of the police need not be challenged before the higher forum.
(vii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. after cognizance has been taken on the police report can be exercised by the Magistrate only on a request made by the investigating agency and not, at the instance of anyone other than the investigating agency or even suo motu. [vide judgement of the Hon'ble Supreme Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 (2) Scale 198].
(viii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. can be exercised by the Magistrate before accepting the negative police report thereby acting on the protest petition by the victim or the de facto complainant. [vide Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685]
(ix) We clarify that anyone who is aggrieved by any order made by the Magistrate on a police report as aforesaid in sub-paragraphs (i) to (iv) hereinabove may approach the higher forum for remedy, if any."
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15. Therefore, the legal position is that once an FIR has been registered, the police cannot register a second FIR on the .
same allegation and carry out a fresh investigation. The police can carry out the investigation in the first FIR if they come across some new material that was not brought to their notice while investigating the first FIR. This power can be exercised even if the police have filed a closure report seeking cancellation of the FIR or an untraced report seeking to keep the FIR as untraced where the accused could not be found despite efforts.
16. It is undisputed that in the present case both the FIRs relate to the production of the forged certificates by the petitioner.
Hence, the second FIR could not have been registered after discovering any new material. The proper course for the police was to investigate earlier FIR 6 of 1997 even though the police had submitted the closure report in the matter which was accepted by the Court.
17. Consequently, the present petition is allowed and FIR No. 1 of 2013, dated 26.01.2013, for the commission of offences punishable under Sections 420, 467, 468 and 471 read with Section 120B of (IPC) registered with Police Station State Vigilance and Anti ::: Downloaded on - 12/08/2024 20:32:02 :::CIS Neutral Citation No. ( 2024:HHC:6777 ) P a g e | 15 Corruption Bureau Solan, District Solan, H.P. is ordered to be quashed. Consequent upon the quashing of the FIR, the .
proceedings arising out of the FIR are also ordered to be quashed.
However, this order will not prevent the police from investigating the earlier FIR No. 6/1997,dated 01.02.1997 for the commission of offences punishable under Sections 420, 467, 468 and 471 read with Section 120B of the Indian Penal Code as per the law.
18. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 12th August, 2024 (Nikita) ::: Downloaded on - 12/08/2024 20:32:02 :::CIS