Himachal Pradesh High Court
(Presently In Jail) vs State Of Bihar And on 17 August, 2022
Bench: Tarlok Singh Chauhan, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 17th DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL WRIT PETITION No.8 OF 2022.
Between:-
RANJEET KUMAR SON OF SHRI BALESHWAR
PRASAD, RESIDENT OF HOUSE No. 35,
VILLAGE TELYAMAI, POST OFFICE OPPEY,
BLOCK ENKANAGAR-SAREY, DISTRICT
NALANDA, BIHAR (AGED ABOUT 38 YEARS).
(PRESENTLY IN JAIL).
....PETITIONER.
(BY MR. SUNEEL AWASTHI, ADVOCATE).
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY ( HOME TO
THE GOVERNMENT OF HIMACHAL
PRADESH SHIMLA.
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2. SUPERINTENDENT OF POLICE SHIMLA,
.
D.C. COMPLEX MALL ROAD SHIMLA-1.
3. CRIME INVESTIGATION DEPARTMENT,
POLICE STATION BHARARI, SHIMLA
THROUGH STATION HOUSE OFFICER.
....RESPONDENTS.
(BY MR. VINOD THAKUR,
ADDITIONALA DVOCATE GENERAL
WITH MR. RAJAT CHAUHAN, LAW
OFFICER)
RESERVED ON: 10TH AUGUST, 2022.
DECIDED ON: 17th AUGUST, 2022.
This petition coming on for order this day, Hon'ble Mr.
Justice Satyen Vaidya, passed the following:-
JUDGMENT
By way of instant petition, the petitioner has prayed for following substantive reliefs:-
"i. That the action of the respondent authorities arresting the petitioner in FIR No.5 of 2022 registered at ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...3...
Police Station Bharari, Shimla under sections 419, 420, 201 .
and 120-B of Indian Penal Code may kindly be quashed and set aside and be declared illegal and unlawful. ii. That the FIR No.5 of 2022 registered at Police Station Bharari, Shimla under sections 419, 420, 201 and 120-B of Indian Penal Code may kindly be quashed and set aside qua the present petitioner or in alternate the FIR's registered at various police station regarding the leak question paper in Police Constable Recruitment Exam Paper may kindly be clubbed in the interest of justice and fair play.
iii. That the contempt notice may kindly be issued to the respondent authorities as the action of the respondent department arresting the petitioner is in violation of the Judgment Passed by the Hon'ble Supreme Court in Arnesh Judgment (2014)8SCC 273.
iv. That the respondent may kindly be directed to release the petitioner in FIR No.5 of 2022 registered at Police Station Bharari, Shimla under sections 420, 120 B, 201 and 120-B of Indian Penal Code as his arrest in unlawful."
2. The ground on which above noted reliefs have been claimed by the petitioner can be summarised as under:-
a. Arrest of petitioner in the same case in which he was bailed out earlier is abuse of power and against the ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...4...
constitutional safeguards available to the petitioner.
.
The arrest of petitioner is just to circumvent the bail order passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala.
b. The arrest of petitioner in FIR No.5 of 2022 registered at Police Station Bharari, Shimla is against the dictum of law in Arnesh Kumar vs. State of Bihar and another reported in (2014)8 SCC 273 and Arnab Ranjan Goswami vs. Union of India & Ors, reported in (2021)2 SCC 427.
c. The arrest of petitioner is in violation of Section 41-A of the Code of Criminal Procedure (for short "the Code").
d. The manner of arrest in the case of petitioner is gross abuse of power. He was arrested in arbitrarily and malafide manner without observance to the due procedure of law.::: Downloaded on - 17/08/2022 20:04:32 :::CIS
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3. Brief facts necessary for adjudication of petition are .
that a case was registered at Police Station Gagal, District Kangra, H.P., on 05.05.2022 vide FIR No. 41 of 2022, under Sections 420 and 120-B of the IPC (for short, "1st FIR") alleging interalia that the question paper meant for written examination scheduled to be conducted during recruitment process for the posts of Constables and Drivers in Police Department of the State of Himachal Pradesh had been leaked a day or two before the date of examination i.e. 27.3.2022. Many persons were suspected to be involved in the criminal conspiracy and commission of offence.
During investigation of 1st FIR some arrests were made. The complicity of petitioner was also found and he was also arrested on 09.06.2022. Petitioner remained in custody in above said case till 31.07.2022. He was released on bail on 01.08.2022.
4. During the course of investigation of 1st FIR certain facts were stated to have been discovered during the interrogation of the accused persons revealing intra district ramification of the scam. The Superintendent of Police, Kangra ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...6...
had apprehended the possibility of jurisdictional issues of trial .
courts and since CID Police Station Bharari exercised jurisdiction all over the State, it was requested to register the case keeping in view possible legal implications. Accordingly, on 07.05.2022 another FIR bearing No. 5 of 2022, under Sections 420 and 120-B of the IPC was registered at Police Station CID , Bharari, District Shimla (for short, "2nd FIR"). After his release on bail in 1st FIR petitioner was arrested in 2nd FIR on 02.08.2022. Presently the petitioner is in judicial custody in 2nd FIR.
5. In the back drop of aforesaid facts, the petitioner has approached this Court alleging violation of his constitutional and statutory rights in the manner as aforesaid. Having regard to the importance of preservation of constitutional guarantees available to the citizens of India, this court vide order dated 08.08.2022 required the respondent to file reply/instructions on or before 10.08.2022. Respondent submitted a status report on 10.8.2022.
Petitioner also placed on record an application along with certain additional documents, viz. copies of 1st and 2nd FIRs, copy of ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...7...
order dated 19.07.2022 passed by learned Judicial Magistrate 1st .
Class, Nahan and a copy of order dated 05.08.2022 passed by learned Single Judge of this Court in Cr.MP(M) No. 1679 of 2022.
6. We have heard the learned counsel appearing for the parties and have also gone through the records.
7. The status report submitted on behalf of the respondents discloses that during the investigation of 2nd FIR a person named Ritik Thakur resident of Verma Niwas P.O. Malyana, Tehsil and District Shimla was also found to have applied for the post of constables and drivers in Police department. On 26.03.2022 Ritik Thakur and his mother Gita Thakur had visited Chandigarh on the asking of one Mahesh Thakur (Uncle of Ritik Thakur) and had found said Mahesh Thakur in the company of another person named Sunil. They had visited a flat at Panchkulla. After some time a whatsapp message was delivered on the mobile phone of Sunil having some solved questions with answers. Sunil had provided his mobile to Ritik Thakur in a separate room with instructions to go through ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...8...
the questions and answers as those would be appearing in the .
written examination the next day. Ritik Thakur had gone through those questions and answers for about 40-45 minutes and returned the phone to Sunil. All monetary transactions were being handled by Mahesh Thakur. He came back and appeared in the examination on 27.03.2022. He had found all those questions in the question paper, which he had prepared at Panchkulla, the previous night. Police made necessary arrests. It was found that above named Sunil had already been arrested in 1st FIR and was in custody. His custody was got transferred in 2nd FIR on 23.07.2022. He was remanded to police custody till 28.07.2022. During interrogation of Sunil Kumar, it was disclosed that petitioner was the kingpin who had managed the entire affair at Chandigarh and provided him with solved question paper on whatsapp. In such circumstances, the arrest of petitioner was found necessary in 2nd FIR and was accordingly arrested on 2.08.2022. As per status report, the petitioner had been remanded to judicial custody till 20.08.2022 by learned ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...9...
Judicial Magistrate First Class, Court No.VII, Shimla. Thus, .
police had found involvement of the petitioner in providing the question paper to Ritik Thakur through Sunil Kumar against consideration.
8. The contention of petitioner is that 2nd FIR is bad in law in as much as it is nothing but continuation of 1st FIR. The subject matter in both the FIRs is identical and overlapping, therefore, the arrest of petitioner in 2nd FIR is also illegal. It has also been submitted that the petitioner has already remained in custody for more than 50 days in 1st FIR on the same very allegations on which the police has again arrested him in 2 nd FIR.
In support of his contention, petitioner has placed reliance on a judgment passed by the Hon'ble Supreme Court in a case titled as T. T. Antony vs. State of Kerala and others, (2001)6 SCC, 181 in which he has been held that:-
"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 ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...10...
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 Narangs' case (supra) 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 underway 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 Article 226/227 of the Constitution."
9. Learned counsel for the petitioner has also relied upon paragraph No.11 of the judgment passed by the Hon'ble ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...11...
Supreme Court in Kari Choudhary vs. Mst. Sita Devi and others, .
(2002) 1 SCC 714, which reads as under:-
"11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. 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 by the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court reading the new discovery made by the police during investigation the persons not named in FIR No. 135 are the real culprits. The quash the said proceeding 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."
10. Further, stress has also been laid upon a judgment passed in Upkar Singh vs. Ved Prakash & Others, (2004) 13 SCC ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...12...
292, especially on paragraphs No. 15 to 18 thereof, which read as .
under:-
"15. The registration of the said crime came to be challenged before the High Court by way of a writ petition and learned Single Judge of the High Court directed the case to be re-investigated by CBI. But in a writ appeal the Division Bench of the High Court quashed the FIR in Crime No. 268 of 1997 as against the Additional Superintendent of Police but it directed a fresh investigation by the State police headed by one of the three Senior Officers named in the judgment in stead of fresh investigation by CBI as directed by the learned Single Judge. It is the above directions of the Division Bench that came to be challenged by way of different appeals before this Hon'ble Court in the case of T.T. Antony (supra) and connected cases. In this factual background this Hon'ble Court, as stated above, came to the conclusion that a subsequent FIR on the same set of facts is not in conformity with the scheme of the Code for the reasons stated therein.
16.Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony vs. State of Kerala & Ors . has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T.T. Antony vs. State of Kerala & Ors. in paragraph 27 of the judgment wherein ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...13...
while discussing the scope of Sections 154, 156 and 173 (2) .
Cr.PC, this is what the Court observed :-
"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 offences 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. PC or under Articles 226/227 of the Constitution"
(Emphasis supplied.)
17.It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T.T. Antony vs. State of Kerala & Ors. 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 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 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 ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...14...
accused in the 1st complaint or on his behalf alleging a .
different version of the said incident.
18.This Court in Kari Choudhary vs. Mst. Sita Devi & Ors. 2002 (1) SCC 714 discussing this aspect of law held :-
"Learned counsel adopted an alternative contention that once the proceedings initiated under FIR no. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. 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 offence alleged have been committed and, if so, who have committed it".
(Emphasis supplied.) ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...15...
11. We have thoughtfully considered above referred .
judgments in order to appreciate the contention raised on behalf of petitioner. The dictum articulated in above noticed judgments is that second FIR for the same offence having similarity of facts is not permissible, however, a cross FIR of the same incident was an exception. Such legal proposition cannot be disputed. In Surender Kaushik and others vs. State of Uttar Pradesh & Others, (2013) 5 SCC 148, the legal position has been summarised as under:
"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 (supra), the prohibition does not cover the allegations made ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...16...
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."
12. The issue, however, is whether it can be laid as an absolute rule that second FIR arising out of a set of facts is always impermissible? Hon'ble Supreme Court in Anju Chaudhary vs. State of Utter Pradesh & Another, (2013)6 SCC 384 has dealt with such proposition in following terms:-
"15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case."
Hon'ble Supreme Court in the aforesaid case emphasised the application of test of "sameness" to find out whether both FIRs related to the same incident and to the same occurrence, were in regard to incidents which were two or more parts of the same ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...17...
transaction or related completely to two distinct occurrences. In .
para-25 of Anju Chaudhary's case (supra), the Hon'ble Supreme Court has held as under:-
"25. The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of 'sameness' to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...18...
version of the second FIR is different and they are in .
respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors.
[(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc."
13. In Nirmal Singh Kahlon vs. State of Punjab & Others, (2009) 1 SCC 441, Hon'ble Supreme Court dealt with the fact situation which is somewhat akin to the facts involved in the present case. There were allegations of a scam in recruitments of Panchayat Sahayaks in the department of Rural Development Government of Punjab. FIR was registered by State Vigilance Bureau and was investigated by the same agency. On the direction of the High Court, CBI was asked to investigate the allegations and CBI registered another FIR. The question was raised as to permissibility of legality of second FIR. A question was formulated by Hon'ble Supreme Court as under:-
"31.Whether the first information lodged by the Vigilance Department of the State and the one lodged by CBI related to the same cause of action is the question?"::: Downloaded on - 17/08/2022 20:04:32 :::CIS
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14. While answering the aforesaid question, it was .
observed as under:-
"52. It may be true that in both the FIRs Kahlon was named. He was considered to be the prime accused. But, it is one thing to say that he acted in his individual capacity and it is another thing to say that he conspired with a large number of persons to facilitate commission of crime by him as a result whereof all of them had made unlawful gains."
15. The Hon'ble Apex Court while holding the second FIR maintainable in the facts of the aforesaid case held as under:-
"67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/ or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged."::: Downloaded on - 17/08/2022 20:04:32 :::CIS
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.
16. In the context of subject under consideration we find it apt to refer to the following observations made by the Hon'ble Supreme Court in Ram Lal Narang vs. State (Delhi Administration), (1979)2 SCC 322:-
"11. It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge-sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture. The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court. The First Information Report and the charge-sheet were concerned primarily with the offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra. At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that the Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court. It was much later that the pillars surfaced in London and were discovered to be in the constructive possession of Narang brothers. Even then, the precise connection between Malik and Mehra on the one side and Narang brothers on the other was not known. All that was known was that the pillars which were stolen ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...21...
property within the definition of the expression in Section .
410 Indian Penal Code were found to be in the possession of Narang brothers in London. On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers. That was what was done. No fault could, therefore, be found with the police for registering a First Information Report against the Narang brothers for the offence of conspiracy to commit an offence under Section 411 Indian Penal Code. In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating. Facts came to light which indicated that the conspiracy, which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy. The fresh facts which came to light resulted in the filing of the second charge-sheet. The several facts and circumstances mentioned by us earlier and a comparison of the two First Information Reports and the two charge-sheets show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case. The conspirators were different. Malik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...22...
conspirators in the second case. The objects of the two .
conspiracies were different. The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them. The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London. The offences alleged in the first case was Section 120-B read with Section 420 and Section 406 Indian Penal Code, while the offences alleged in the second case were Section 120-B read with Section 411 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972.
It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the First Information Report was registered. It is also true that Omi Narang and Manu Narang were not extradited for the offence under the Antiquities and Art Treasures Act and, therefore, they could not be tried for that offence in India.
But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...23...
changed by the mere inclusion of a few more conspirators .
as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject matter of the second case. As we mentioned earlier, when investigation commenced in First Information Report No. R.C. 4 of 1976, apart from the circumstance that the property involved was the same; the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known."
17. It is clear from the aforesaid exposition that it is on the basis of fact situation of each case that the determination as to the question of maintainability of second FIR has to be made.
Section 154 of the Code of Criminal Procedure (for short, the Code") mandates registration of FIR in every case where ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...24...
commission of cognizable offence is made out from the .
information made available to the police. Meaning thereby that police is under a mandate to register as many FIRs as may arise from information made available to it disclosing commission of cognizable offences. The only requirement is that it should be separate and distinct offence. In Anju Chaudhary's case (supra) the theory of "sameness" was propounded as per said hypothesis the distinctive features being whether both FIRs relate to same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed.
However, in case, contrary is proved, where version of second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. Reference has been made to the judgment passed by the Hon'ble Supreme Court in Babubhai v. State of Gujarat, (2010) 12 SCC 254. The said judgment clearly spelt out the distinction between two FIRs ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...25...
relating to the same incident and two FIRs relating to different .
incident or occurrences of the same incident.
18. Reverting to the facts of the case, a scam has been detected in respect of the recruitment of Constables and Drivers in police department of the State of H.P. The question paper for said examination was leaked and was made available to many candidates, who had applied for said posts.
r Involvement of various channels has been discovered. The criminal conspiracy to commit such offence may form a single or more transactions but it does not necessarily mean that it may have ended in commission of only a single offence. The cheating and fraud committed at separate places in respect of separate persons will constitute separate offences. In this case also it is not the case of the petitioner that in 1st FIR the allegation against him was only of providing solved question paper to Ritik Thakur through Sunil Kumar. Had it been so, definitely second FIR would not be permissible but since in 1st FIR the allegations are different, 2nd FIR with above noticed allegations cannot be said to be ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...26...
impermissible especially when the magnitude of scam is likely to .
have different facets and consequences.
19. Another contention raised on behalf of the petitioner is that the dictum of Arnesh Kumar vs State of Bihar and another reported in (2014)8 SCC 273 and Arnab Ranjan Goswami vs. Union of India & Ors, reported in (2021)2 SCC 427, has not been followed by respondents to the prejudice of the constitutional rights of the petitioner. Before dealing with the aforesaid submission at the touchstone of referred judgments, it is necessary to take notice of relevant provisions of the Code.
Section 154 of the Code, 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.
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(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 subsection (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."
Section 41 of the Code reads as under:-
41. When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...28...
punishable with imprisonment for a term which may be .
less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) the police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence, or
(b) for proper investigation of the offence, or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
or
(d) to prevent such person from making any inducement ,threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured , and the police officer shall record while making such arrest, his reasons in writing ;
(ba) against whom credible information has been received that he has committed a cognizable offence punishable ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...29...
with imprisonment for a term which may extend to more .
that seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...30...
arrested and the offence or other cause for which the .
arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate"
Section 41-A of the Code reads as under:-
"41-A. Notice of appearance before police officer-(1) The police officer may ,is all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41,issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence to appear before him or at such other place as may be specified in the notice .
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice , he shall not be arrested in respect of the ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...31...
offence referred to in the notice unless, for reasons to be .
recorded ,the police officers is of the opinion that he ought to be arrested .
(4) Where such person,at any time ,fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court in this behalf, arrest him for the offence mentioned in the notice."
20. As noticed earlier also it is mandatory for the police to register an FIR if it receives an information disclosing commission of cognizable offence. There is no option with the police to adopt any other course. In Lalita Kumari vs. Government of Utter Pradesh and others, (2014)2 SCC 1, the Hon'ble Supreme Court has laid down as under:-
"120. In view of the aforesaid discussion, we hold:
120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...32...
inquiry, a preliminary inquiry may be conducted only to .
ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...33...
e) Cases where there is abnormal delay/laches in initiating .
criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
21. Section 41 of the Code authorises a Police Officer to arrest any person without an order from a Magistrate and without a warrant provided the conditions laid down in clauses
(a) to (e) of sub-section (1) thereof are complied with. There is nothing in this provision that prohibits or bars the arrest of a ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...34...
person without issuing him notice. In Arnesh Kumar versus .
State of Bihar, it has been mandated that the police officer making arrest under Section 41 of the Code shall record the reasons necessitating the arrest. Arnesh Kumar's judgment (supra) has recently been approved in Satyender Kumar Antil vs. CBI, 2022, r to SCC Online SC 825 and it has been held as under:-
21. Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. If the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest. Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.::: Downloaded on - 17/08/2022 20:04:32 :::CIS
...35...
22. This provision mandates the police officer to record his .
reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest.
There is no requirement of the aforesaid procedure when the offense alleged is more than seven years, among other reasons.
23. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense. Resultantly, while considering the application for enlargement on bail, courts will have to satisfy themselves on the due compliance of this provision. Any non-compliance would entitle the accused to a grant of bail.
24. Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.
25. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. We need not elaborate any further, in light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
"7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...36...
police officer before arrest, in such cases has to be further .
satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey:::: Downloaded on - 17/08/2022 20:04:32 :::CIS
...37...
8.1. During the course of investigation of a case, an .
accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...38...
authorising the detention and only after recording his .
satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
9. ...The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.
::: Downloaded on - 17/08/2022 20:04:32 :::CIS...39...
11. Our endeavor in this judgment is to ensure that police .
officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;::: Downloaded on - 17/08/2022 20:04:32 :::CIS
...40...
11.7. Failure to comply with the directions aforesaid shall .
apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."
26. We only reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non-compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Court, which is expected to be reflected in the orders.
22. We have noticed from the contents of status report filed on behalf of the respondents that the arrest of petitioner in 2nd FIR is stated to have been made after satisfaction as to the necessity of such arrest. It is not disputed that after his arrest, petitioner was produced before the learned Judicial Magistrate 1st Class, who remanded the petitioner to judicial custody till 20.08.2022. The presumption is attached to a judicial order ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...41...
passed by the Court having jurisdiction. As per Arnesh Kumar's .
case (supra), the Police was under direction to provide material to learned Magistrate justifying the remand and the learned Magistrate could have remanded the petitioner only after satisfying himself as to the compliance of the mandate of law.
There is no challenge in the present petition to the order passed by learned Judicial Magistrate 1st Class, Court No. VII, Shimla, who remanded the petitioner to judicial custody. Viewed from another angle also petitioner has alleged the violation of his constitutional rights and also directives issued in the case of Arnesh Kumar (supra), without providing any factual foundation for such allegations. There is not even a whisper as to how the mandate of Section 41 was not followed by the police.
23. As regards violation of Section 41-A of the Code alleged by the petitioner, it is suffice to say that in the facts of the case in hand Section 41-A of the Code was not applicable. It was not a case where the police did not require immediate custody of the petitioner. Requirement of notice under Section 41-A of the ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...42...
Code is imperative when the police does not require immediate .
arrest of the accused.
24. It is evident from second prayer of the petitioner that the petitioner has sought quashing of 2nd FIR qua him only.
Meaning thereby, he has not challenged the permissibility or legality of 2nd FIR as such. Except as above, no separate ground has been raised by the petitioner to warrant making of such prayer. We have already held that the second FIR was permissible in the facts of instant case. Prima facie complicity of petitioner was found. There was credible information with the police that the petitioner had supplied solved question paper to accused Ritik Thakur through another accused Sunil Kumar. In such circumstances, the arrest of petitioner cannot be said to be unwarranted. The reliance by petitioner on Arnab Ranjan Goswami vs. Union of India & Ors, reported in (2021)2 SCC 427 is also misplaced. In the said case, Hon'ble Supreme Court was dealing with the question of release of appellant therein as interim measure in petition filed before the Bombay High Court ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...43...
for quashing the FIR in the said case. In the present case, there is .
no challenge to FIR as such. The judgment noticed hereinabove will otherwise not serve the cause of the petitioner as prima facie complicity of petitioner has been found to exist. The FIR cannot be quashed in parts. To say that there is no material showing the involvement of a person is another thing than to seek quashing of FIR against that particular person.
r The sole platform on which petitioner appears to be standing in his challenge to the validity of second FIR is its impermissibility. Such contention has already been rejected by us.
25. From the above analysis, we find no merit in this petition and the same is dismissed. All pending miscellaneous application(s) shall also stand disposed of.
26. Before parting, we feel it appropriate to observe that irrespective of the decision of this petition, petitioner has independent right to claim his release on bail and in case petitioner avails such remedy, the case of the petitioner shall be decided by the court concerned on its own merit and the ::: Downloaded on - 17/08/2022 20:04:32 :::CIS ...44...
observations made by us hereinabove shall in no manner affect .
such adjudication process.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 17th August, 2022.
(jai) ::: Downloaded on - 17/08/2022 20:04:32 :::CIS