Andhra Pradesh High Court - Amravati
Therefore vs State Of Gujarat (Supra) And Chirra ... on 5 May, 2022
Author: D.Ramesh
Bench: D. Ramesh
1
THE HON'BLE SRI JUSTICE D. RAMESH
CRIMINAL PETITION NO.65 of 2022
ORDER:-
This Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 ( for short "Cr.P.C.") is filed seeking quash of Crime No. 262 of 2019 on the file of the Dargamitta Police Station, SPSR Nellore District.
2. Initially, the defacto complainant made a complaint on 12.08.2019 before the Dargamitta Police Station of SPSR Nellore District, against one Vayugandla Rajesh, accordingly, the same was registered as FIR.No.213 of 2019 for the offences punishable under sections 307, 324 IPC. Subsequently, on 16.10.2019, based on the complaint made by the defacto complainant against the same person, the Dargamitta Police of SPSR Nellore District, registered crime in FIR.No.262 of 2019. According to the complaint made on 12.8.2019, the incident occurred on 12.8.2019 at about 12.30 hours at Lecturers colony, Magunta Layouts, Nellore City. The allegations levelled are that the accused Vayugandla Rajesh of Usman Sahebpeta, Nellore city, picked up quarrel with the complainant Vayugandla Venkateswarlu s/o Rama Rao, when he went to the office of the accused, situated in Lecturers colony, at about 12.00 hours on 12.8.2019 to receive his loan amount as the accused took out an iron rod and indiscriminately assaulted him over his head, face and also on the hands thereby 2 causing severe bleeding injuries and accordingly, he was admitted in a hospital on 12.8.2019 at about 3.10 P.M for treatment. Subsequent to registering of FIR.No.213 of 2019, the authorities have completed the investigation and filed charge sheet under sections 307, 326 and 324 IPC before the V Additional Judicial Magistrate of First Class, Nellore.
3. That being the situation, the defacto complainant again has made a complaint on 16.10.2019 to the Dargamitta Police of SPSR Nellore District stating that Vayugandla Rajesh with false promises made the defacto complainant to invest huge amounts in a business by making him to believe that the amounts will be repaid within a short period and subsequently, when he requested for repayment of the said amounts, the said Vayugandla Rajesh along with some other persons have attacked him in his office which is situated at Lecturers colony, Magunta Layouts, Nellore City and tried to kill him. Further it was alleged that the said Vayugandla Rajesh has cheated him by misappropriating huge amounts and basing on this complaint the Dargamitta Police of SPSR Nellore District registered crime in FIR.No.262 of 2019 for the offences punishable under sections 406 and 420 IPC.
4. The learned counsel appearing on behalf of the petitioner submitted that initially, the defacto complainant has made a complaint against one Vayugandla Rajesh/sole accused, for the 3 incident occurred on 12.8.2019 at Lecturers colony, Magunta Layouts, Nellore City and accordingly, the authorities have completed the investigation and filed charge sheet under sections 307, 326 and 324 IPC before the V Additional Judicial Magistrate of First Class, Nellore. Therefore, registering the 2nd FIR for the very same incident is nothing but misuse of powers and is contrary to the observations made by the Apex Court in catena of judgments.
5. The learned counsel appearing on behalf of the petitioner further submitted that after investigating the crime and filing of charge sheet, the question of again investigating on the same crime does not arise. A perusal of the present complaint would go to show that the allegations made are that the said Vayugandla Rajesh has tried to kill him by attacking him in his office along with some others who are his kith and kin . Except, stating that 'along with his kith and kin', particularly, no names are mentioned. Based on this crime, the concerned police have included the petitioner as 6th accused. Though his name was not referred in the complaint and though there are no specific allegations made against the petitioner, his name was included in the FIR.
6. Learned counsel appearing for the petitioner further submits that in fact, the petitioner has filed a suit, on the file of the District Civil Judge, Nellore, against the said Vayugandla Rajesh for payment of 4 Rs. 19,74,082/- with interest based on the promissory note given in his name. Believing the words of Vayugandla Rajesh, the petitioner has invested Rs.62,00,000/- on 30.07.2018 for his business by taking promissory note. Thereafter, despite repeated requests, he has not fulfilled the conditions of promissory note. Left with no other option, the petitioner filed OS.No.16 of 2020 on the file of the District Judge, Nellore.
7. The learned counsel for the petitioner further submitted that the petitioner was cheated by the said Vayugandla Rajesh and in fact, the defacto complainant has already lodged a criminal case against the said Vayugandla Rajesh for cheating vide FIR.No.213 of 2019. Therefore, the 1st respondent/authority cannot register and proceed with the investigation in the present complaint which is filed on the same issue. To support his contention, the learned counsel for the petitioner has relied upon the observations made by the Apex Court in ARBAN RANJAN GOSWAMI v UNION OF INDIA AND OTHERS1 whereunder, at paras 30, 34 and 59, it is held as follows:-
"30: The fundamental basis on which the jurisdiction of this Court has been invoked under Article 32 is the filing of multiple FIRs and complaints in various States arising from the same cause of action. The cause of action was founded on a programme which was telecast on R Bharat on 21 April 2020. FIRs and criminal complaints were lodged against the petitioner in the States of Maharashtra, Rajasthan, Madhya Pradesh, Telangana and Jharkhand besides the Union Territories of Jammu and Kashmir. The law concerning multiple criminal proceedings on the same cause of action has been analyzed in a judgment of this 30 Court in TT Antony v State of Kerala19 ("TT 1 2020 SCC OnLine SC 462 5 Antony"). Speaking for a two judge Bench, Justice Syed Shah Mohammed Quadri interpreted the provisions of Section 154 and cognate provisions of the Cr.PC including Section 173 and observed:
"20...under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.PC, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.PC. 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 Cr.PC." The Court held that "there can be no second FIR" where the information concerns the same cognizable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognizable offences. This is due to the fact that the investigation covers within its ambit not just the alleged cognizable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the Cr.PC. The court observed: 19 (2001) 6 SCC 181 31 "18...All other information 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 Cr.PC. 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 Cr.PC."
34: The decision in TT Antony came up for consideration before a three judge Bench in Upkar Singh v Ved Prakash20 ("Upkar Singh"). Justice N Santosh Hegde, speaking for this Court adverted to the earlier decisions of this Court in Ram Lal Narang v State (Delhi Administration) 21 ("Ram Lal Narang"), Kari Choudhary v Mst. Sita Devi22 ("Kari Choudhary") and State of Bihar v JAC Saldanha23 ("Saldanha"). The Court noted that in Kari Choudhary, this Court held that: "11...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." 6
59: As we have noted earlier, multiple FIRs and complaints have been filed against the petitioner in several states and in the Union Territories of Jammu and Kashmir. By the interim order of this Court dated 24 April 2020, further steps in regard to all the complaints and FIRs, save and except for the investigation of the FIR lodged at Police Station Sadar, District Nagpur City were stayed. The FIR at Police Station Sadar, District Nagpur City has been transferred to NM Joshi Marg Police Station in Mumbai. We find merit in the submission of Mr Kapil Sibal, learned Senior Counsel that fairness in the administration of criminal justice would warrant the exercise of the jurisdiction under Article 32 to quash all other FIRs (save and 51 except for the one under investigation in Mumbai). However, we do so only having regard to the principles which have been laid down by this Court in TT Antony. The filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible. We clarify that the quashing of those FIRs would not amount to the expression of any opinion by this Court on the merits of the FIR which is being investigated by the NM Joshi Marg Police Station in Mumbai."
8. Further, the Hon'ble Apex Court in case between PRADEEP RAM v STATE OF JHARKHAND AND ANOTHER2 has held as follows:
37: 35. The same principle has been reiterated in Babubhai Vs. State of Gujarat (supra) and Chirra Shivraj Vs. State of Andhra Pradesh (supra). This Court in Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation (supra) had again occasion to consider the legality of second FIR. After reviewing the earlier decisions under the heading "legal aspects as to permissibility/impermissibility of second FIR".
This Court laid down following in paragraph Nos. 36 and 37:-
"36. Now, let us consider the legal aspects raised by the petitioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by order dated 12- 1-2010 till filing of the charge-sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried "in accordance with law".2
2019 SCC OnLine SC 825 7
37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony3, this Court has categorically held that registration of second FIR (which is not a cross- case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as under:
(SCC pp. 196-97 & 200) "19. The scheme of CrPC is that an officer in charge of a police station has to commence 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 investigation and 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.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of 8 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 CrPC 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 Narang case 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) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, 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 under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution." The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions."
36. Paragraph 58.1 to 58.10 contains the summary of judgments. In paragraph Nos.58.3 and 58.4 following has been laid down:-
"58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the 9 requirements of Section 154 of the Code. 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.
58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the 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 Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. 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, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution."
39: Thus, from the above discussions, it is clear that there cannot be any dispute to the proposition that second FIR with regard to same offences is barred. But whether in the present case, FIR dated 16.02.2018 registered by NIA, can be said to be second FIR. Before answering the above question, we need to look into the scheme of the NIA Act, 2008."
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9. Further, the Hon'ble Apex Court in case between BABUBHAI v. STATE OF GUJARAT AND OTHERS3 "20: Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In- charge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C.
27: In view of the above, we are of the considered opinion that the High Court reached the correct conclusion and second FIR C.R. I- 155/2008 was liable to be quashed."
This Court held that the relevant enquiry is whether two or more FIRs relate to the same incident or relate to incidents which form part of the same transactions. If the Court were to conclude in the affirmative, the subsequent FIRs are liable to be quashed. However, where the subsequent FIR relates to different incidents or crimes or is in the form of a counter-claim, investigation may proceed.
[See also in this context Chirra Shivraj v State of Andhra Pradesh25 and Chirag M Pathak v Dollyben Kantilal Patel26].
10. Learned counsel appearing on behalf of the 1st respondent has submitted that in fact, the first FIR is registered only against the Vayugandla Rajesh under Sections 307 and 324 IPC but in the present case they have registered a crime against the six accused under sections 406 and 420 IPC. Hence, earlier complaint dated 12.8.2019 and the present complaint dated 16.10.2019 are two different complaints and the ingredients of the complaints are also different. 3 (2010)12 SCC 254 11 Hence, it cannot be construed as 2nd FIR and that it is an independent FIR.
11. A perusal of the complaint dated 12.8.2019, makes it clear that when the defacto complainant went to the office of one Vayugandla Rajesh on 12.8.2019 for receiving the amounts which are due to him, the said Vayugandla Rajesh has attacked the defacto complainant and accordingly, he has sustained severe injuries. A perusal of the present complaint also reveals the very same incident. Though he has not mentioned any particular date of the incident, it reveals the same incident and the main allegation is that Vayugandla Rajesh has tried to kill him by attacking him in his office along with some others who are his kith and kin. Except stating that 'along with others who are his kith and kin', he has not even mentioned any names in the present complaint.
12. A perusal of both the complaints, makes it clear that in the first complaint the date and time of the incident is mentioned but in the 2nd complaint, without mentioning the date and time has referred the place of the incident where it has happened. In view of the above, taking the ingredients of both the complaints it should be construed as two FIRs are filed against the very same incident which cannot be permitted as per the observations made by the Apex Court in case of 12 TT Anthony v. State of Kerala and others 4, and from the date of pronouncement of the judgment, consistently the said law is being followed by the Apex court and even in the latest judgments also, the law is very clearly declared that no fresh investigation for two FIRs on the very same connected offence can be made.
13. Considering the submissions made by both the counsel and on perusal of the material papers placed on record and also taking into account, the observations of the Apex Court cited above, Crime No. 262 of 2019 on the file of the Dargamitta Police Station, SPSR Nellore District, is hereby quashed in respect of petitioner only and the petition is accordingly allowed.
As a sequel thereto, miscellaneous applications, if any pending shall stand closed.
__________ D.RAMESH,J PA.
4 2001 SCC OnLine SC 805 13 HON'BLE SRI JUSTICE D.RAMESH CRIMINAL PETITION NO. 65 of 2022 DATED: .05.2022 PA. 14 HIGH COURT OF ANDHRA PRADESH :: AMARAVATI MAIN CASE No:CRL.P.No.65 of 2022 PROCEEDING SHEET SL. DATE ORDER OFFICE NOTE NO. 01. .05.2022 DR, J Criminal Petition is allowed. (VSO) _______ DR,J PA. 15 SL. DATE ORDER OFFICE NOTE NO. 16 THE HON'BLE SRI JUSTICE D. RAMESH
PRE DELIVERY JUDGMENT IN CRL.P.NO. 65 OF 2022