Karnataka High Court
Sri.Pradeep Kumar Sexena vs The State Of Karnataka on 26 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH.
DATED THIS THE 26TH DAY OF JULY 2017.
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITIONS NOs.103280-103282 OF 2016.(GM-RES)
BETWEEN:
1. SRI.PRADEEP KUMAR SEXENA
S/O K.C SEXENA
AGE: 59 YEARS, OCC: GENERAL MANAGER
SOUTH WESTERN RAILWAYS,
HUBBALLI.
2. SRI.UPPULURI KRISHNAMURTHY
S/O UPPULURU SURYA RAO.
AGE: 54 YEARS, OCC: SENIOR DEPUTY
GENERAL MANAGER
SOUTH WESTERN RAILWAYS,
HUBBALLI.
3. SRI.SUNIL SINGH SOIN S/O. LATE RAJ SINGH
AGE: 56 YEARS, OCC: AGM.
SOUTH WESTERN RAILWAYS,
HUBBALLI.
4. SRI.PREM NARAYAN
AGE: 48 YERS, OCC: SENIOR DIVISIONAL
ENGINEER-CO-ORDINATION,
SOUTH WESTERN RAILWAYS,
HUBBALLI.
5. SRI.PERVESH KUMAR
AGE: 39 YERS, OCC: SENIOR DIVISIONAL
ENGINEER-CENTRAL,
SOUTH WESTERN RAILWAYS,
HUBBALLI.
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6. SRI.N.Y SINGH
AGE: 54 YEARS, OCC: INSPECTOR OF WORKS.
SOUTH WESTERN RAILWAYS,
HUBBALLI.
7. SRI.RAVINDRA BIRADAR
AGE: 31 YEARS, OC: ADDITIONAL DIVISIONAL
ENGINEER.
SOUTH WESTERN RAILWAYS,
HUBBALLI.
8. SRI.P RAJALINGAM BASU
S/O N. PRATHABAN BASU
AGE: 40 YEARS, OCC: SENIOR DIVISIONAL
COMMERCIAL MANAGER.
SOUTH WESTERN RAILWAYS,
HUBBALLI.
... PETITIONERS
(BY SRI.V. M. SHEELVANT, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY PSI RAILWAY POLICE STATION
HUBBALLI.
REPRESENTED BY
SPP HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
2. SRI.TUKARAM S/O GEETHANANDA JYOTWANI
AGE: 58 YEARS, OCC: BUSINESS,
R/O: PATIL LAYOUT H.NO.50,
KESHAWAPUR, HUBBALLI.
3. SRI.UMAKANT DIXIT S/O SHIVARAM DIXIT
AGE: 42 YEARS, OCC: GOVERNMENT SERVANT
R/O: H.NO.100, C.T.PARK, NAVANAGAR
HUBBALLI.
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4. SMT.M.G. ASHA W/O LATE M.GALEAPPA
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: NO.33, CHAPPARADAHALLI, YESHWANT NAGAR,
TQ: SANDUR, DIST: BALLARI.
... RESPONDENTS
(SRI.PRAVEEN K.UPPAR-HCGP FOR R1)
(R2 AND R3-SERVED)
(SRI. ARAVIND D.KULKARNI FOR R4)
THESE WRIT PEITIONS ARE FILED UNDER ARTICLE 226
OF CONSTITUTION OF INDIA READ WITH 482 OF CRIMINAL
PROCEDURE CODE PRAYING TO COURT QUASH THE COMPLAINT
AND FIR REGISTERED TO HUBBALLI RAIWAY POLICE STATION
CRIME NO.13/2016 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 338 AND 304 A OF IPC PENDING ON TEH FILE OF 1ST
JMFC COURT, HUBBALLI, PRODUCED AT ANNEXURE-C AND D
AND ETC.
THESE WRIT PETITIONS COMING ON FOR HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
These writ petitions are filed under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code praying the Court to issue writ in the nature of certiorari or any other appropriate writ order or direction and quash the complaint and FIR, registered in Hubballi Railway Police Station in Crime No.13/2016 for the offence punishable under Section 338 and 304A of the Indian Penal Code pending on the file of the I-JMFC Court, :4: Hubballi, produced at Annexure-C and D, So also, to quash the compliant and FIR registered in Hubballi Railway Police Station Crime No.14/2016 and 21/2016 for the offence punishable under Section 304 of the IPC, produced at Annexures-E, F, G and H respectively.
It is also prayed to issue writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent not to register new crime with regard to collapse of the Railway Parcel Building Hubballi and direct the respondent to conduct investigation in Crime No.12/2016 in accordance with law to meet ends of justice.
2. Brief facts as narrated by the petitioners in the petition that one Sri.Pradeep s/o Raghavendra Huralikatti filed the information before the P.S.I. Railway Police Station Hubballi in Crime No.12/2016 for offence punishable under Sections 337, 338 and 304A of the IPC against the South Western Railway Officials with regard to collapse of railway building. On the very day, P.S.I. :5: Railway Police Station, registered second crime against South Western Railway Officers for the same incident on the complaint of Tukaram s/o Jithinand Jyotwani in Crime No.13/2016 for the offence punishable under Sections 338 and 304A of the IPC. Further P.S.I. Railway Police Station registered third FIR on the basis of information lodged by one Sri.Umakant Shivaram Dixit in Crime No.14/2016. Further the P.S.I. Huballi Railway Police Station registered fourth crime with respect to same incident, for the offence punishable under Section 304 of IPC on the complaint of Smt.M.G.Asha against petitioners herein. It is impermissible to register multiple FIRs for the same crime or incident and it is nothing but abuse of the powers and infringes the personal liberty of the petitioners. Hence, the petition is filed for the said reliefs.
3. Heard the learned counsel appearing for the petitioners, who are accused No.1 to 8 in Crime No.21/2016 and also heard the learned counsel appearing for respondent No.4, who is complainant in Crime :6: No.21/2016, so also, heard the learned HCGP for respondent No.1-State.
Respondent Nos.2 and 3/complainants though served, remained absent and there is no representation.
4. Learned counsel appearing for the petitioners/accused made the submission that in respect of same incident or the same transaction there cannot be more than one FIR to be registered which is also recognized under the provisions of Cr.P.C. Hence, learned counsel made the submission that in the case on hand, in respect of the very same incident of collapsing the railway building, four FIRs are registered one after the another, which is totally illegal. Hence, he is challenging the registration of the subsequent FIRs, which are three in number, and he made it clear that he is not challenging or opposing those three complaints, but he confined his submission only with regard to registration of the subsequent FIRs. In support of his contention, learned counsel appearing for the petitioners has relied upon the :7: following decisions of the Hon'ble Apex Court filed along with Memo dated 25.07.2017 :
i. (2001) 6 Supreme Court Cases 181 in
the cases of T.T.Antony Vs. State of
Kerala and others;
ii. (2013) 6 Supreme Court Cases 348 in
the case of Amitabhai Anilchandra Shah Vs. Central Bureau of Investigation and another iii. Order of this Court in Crl.P.1785/2016 in the case of Agri Gold Farm Estates India Private Limited vs. State of Karnataka; iv. AIR (KAR) 2015 (3) 379 in the case Mallu vs. State of Karnataka.
Hence, he submitted to allow the writ petitions and to grant the relief as prayed for.
5. Per contra the learned counsel appearing for the respondent No.4/complainant, during the course of argument made the submission that if the investigation officer is taking the subsequent complaints into consideration, while conducting the investigation in respect of the said incident, then the respondent No.4 is not having any sort of objections. It is also his contention that :8: even if the subsequent FIRs are going to be quashed, on the ground that there cannot be more than one FIR on the same incident. But at least the complaints in respect of those subsequent FIRs are to be taken as statements recorded under Section 162 of Cr.P.C., which will have to be considered during the course of investigation of the original FIR No.12/2016. Hence, the learned counsel submitted that in that regard the I.O is to be directed by this Court to take those aspects i.e., the subsequent complaints also into consideration while filing the charge sheet in the case, and accordingly the orders may be passed.
6. I have perused the grounds urged in the writ petitions and also the decisions relied upon by learned counsel appearing for the petitioners/accused.
Looking to the decision of the Hon'ble Apex Court reported in (2001) 6 Supreme Court Cases 181 in the cases of T.T.Antony Vs. State of Kerala and others, :9: wherein the relevant paragraph i.e., paragraph No.18 reads as under:-
"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 : 10 : 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 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, : 11 : 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."
7. I have also perused another decision of the Hon'ble Apex Court reported in (2013) 6 Supreme Court Cases 348 in the case of Amitabhai Anilchandra Shah Vs. Central Bureau of Investigation and another and the relevant paragraph Nos. 35, 36 and 37 which reads as under.
"35. The above details mentioned in the charge-sheet dated 4-9-2012 clearly show that what CBI has conducted is mere "further investigation" and the alleged killing of : 12 : Tulsiram Prajapati was in continuance of and an inseparable part of the conspiracy which commenced in November 2005 with the abduction of Sohrabuddin, Kausarbi and Tulsiram Prajapati and which culminated into the final stage of alleged killing of Tulsiram Prajapati who was kept under the control of accused police officers since he was a material eyewitness like Kausarbi. To put it straight, apart from the consistent stand of CBI, the charge-sheet dated 4-9-2012 itself is conclusive to show that the said charge-sheet, in law and on facts, deserves to be treated as "supplementary charge-sheet in the first FIR".
Legal aspects as to permissibility/ impermissibility of second FIR
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 : 13 : 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".
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.Antony, 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 Cr.PC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Cr.P.C on the basis of entry of the : 14 : 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 Cr.P.C., as the case may be, and forward his report to the Magistrate concerned under Section 173(2) 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.
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 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 FIR and consequently there can be no : 15 : fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to none 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.P.C.
27. 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 Narang : 16 : 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) 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 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 Cr.P.C or under Articles 226/227 of the Constitution." : 17 :
The abovereferred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions."
8. Looking to the above two decisions of the Hon'ble Apex Court, wherein it is clearly held that there cannot be more than one FIR in respect of the same incident or the incident taken place in the same transaction. It is also observed by the Their Lordships of the Hon'ble Supreme Court that the complaints on the basis of which, the subsequent FIRs are registered, those complaints can be taken into consideration as a statement recorded under Section 162 of the Cr.P.C. and the investigation officer has to consider those complaints while conducting the investigation. It is also the observation of Their Lordships of the Hon'ble Apex Court that in view of the subsequent complaints, which resulted in registration of subsequent FIRs, if it is necessary for the investigation officer to conduct further investigation in the matter, with the permission of the Court invoking Section 173(8) of the : 18 : Cr.P.C., he can conduct further investigation and to file further report before the Court taking into consideration the subsequent complaints and its contents.
9. In view of this legal position as laid down by the Hon'ble Apex Court in the above two decisions, I am of the opinion that the learned counsel appearing for the writ petitioners is justified in making his submission that there cannot be more than one FIR in respect of the same incident and so far as the factual aspect is concerned there is no dispute even by the respondent No.4/complainant that it is only one incident i.e., the collapse of the railway building. Hence, the writ petitions are allowed and the subsequent FIRs in Crime Nos.13, 14 and 21 of 2016 are set-aside and the investigation officer has to take into consideration all these three subsequent complaints into consideration, while conducting the investigation and if he has already filed the charge sheet on the basis of the first FIR and if necessary in view of the subsequent complaints, he has to take the permission of the concerned Court and : 19 : to conduct further investigation in the matter and to submit the further reports.
The PSI, Railway Police Station, Hubballi, is hereby directed not to register any other FIR in connection with the collapse of railway parcel building, Hubballi.
The subsequent three complaints can be taken into consideration along with the complaint under which the first FIR is registered in Crime No.12/2016.
Sd/-
JUDGE RHR/-