Andhra HC (Pre-Telangana)
W.A. No.1586 Of 2012 vs D.Kasaiah on 4 January, 2013
Bench: Pinaki Chandra Ghose, Vilas V. Afzulpurkar
THE HON'BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL NO.1586 OF 2012 and batch dated:4-1-2013 W.A. NO.1586 OF 2012 D.Kasaiah... Appellant Sunkara Srinivasulu & others... Respondents COUNSEL FOR APPELLANT: Sri Vinay Kamisetty COUNSEL FOR RESPONDENT NOs.1 to 4: Sri Gopala Krishna Kalanidhi COUNSEL FOR RESPONDENT NO.5: G.P. for Home COUNSEL FOR RESPONDENT NO.6 : - COUNSEL FOR RESPONDENT NO.8 & 9: Sri J. Janikirami Reddy <GIST >HEAD NOTE: ? CITATIONS: 1. AIR 1945 PC 18 2. AIR 1960 SC 866 3. 1992 Supp (1)SCC 335 : 1992 SCC (Cri) 426 4. (2005) 13 SCC 540 5. (1998) 8 SCC 728 6. (1990) Supp. SCC 686 7. (1995) 2 SCC 370 8. 2004 (6) ALT 757 = 2004(6) ALD 855 9. (1992) 3 SC 317 10. (2001) 6 SCC 181 11. 3 (1979) 2 SCC 322 COMMON JUDGMENT:
(Per the Hon'ble the Chief Justice)
1. Whether, on the ground that there was manipulation of the First Information Report by Officer in charge of Police Station while registering a crime, the First Information Report as also the criminal proceedings commenced on the basis of a charge sheet laid thereunder before the Magistrate are liable to be quashed is the question that arises for consideration in these appeals filed by the de facto complainant and the then Station House Officer, Owk Police Station, Kurnool District respectively against the common order of the learned single Judge in W.P.No.24030 of 2010 and Crl. Petition No.5521 of 2012 dated 3.12.2012 quashing the FIR in Cr.No.94/2010 of Owk Police Station and the proceedings before the Judicial Magistrate of First Class, Banaganapalli in C.C.No.254 of 2010.
2. Incidentally, while quashing the First Information Report in Cr.No.94/2010 and the proceedings in C.C.No.254 of 2010, the learned single Judge also issued a direction to the Superintendent of Police, Kurnool to keep the then Station House Officer, Owk Police Station (2nd respondent in the Writ Petition) under suspension forthwith and launch necessary disciplinary proceedings under Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 or/and any other relevant Rules as well as criminal proceedings for the offences committed by him and report compliance of the same to this Court immediately.
While Writ Appeal No.1586 of 2012 is filed by the de facto complainant (2nd respondent in Crl.P.No.5521 of 2012 and 3rd respondent in W.P.No.24030 of 2010) Writ Appeal No.1587 of 2012 is preferred by the then Station House Officer, Owk P.S. who is impleaded as Respondent No.3 in the writ petition.
3. The Writ Petition is filed by the accused in Cr.No.94/20110 for a writ of mandamus declaring the action of the Station House Officer in registering the crime as arbitrary, illegal and vitiated by colourable exercise of power violating the provisions of the Constitution of India. The Criminal Petition is filed under Section 482 of the Code of Criminal Procedure to call for the records in C.C.No.254 of 2010 dated 4.10.2010 on the file of the Judicial Magistrate of first Class, Banaganapalli and to quash the proceedings therein.
4. Before we deal with the issue we are of the view that the learned single Judge while recording a finding that there was manipulation of the First Information Report by the Station House Officer in registering the complaint is not justified in quashing the First Information Report in its entirety as also the criminal proceedings already commenced by the Magistrate, without examining, whether, notwithstanding the alleged manipulation, the later First Information Report which has been registered and forwarded to the jurisdictional Court, so far as it is consistent with the earliest one, would sustain to set the criminal law in motion and to continue the criminal proceedings, because, the Apex Court by a long series of decisions held that the inherent powers under Section 482 of the Criminal Procedure and the extraordinary powers under Article 226 of the Constitution of India to quash a First Information Report and criminal proceedings should be exercised by the High Courts sparingly except in cases where the complaint or First Information Report broadly read does not disclose any offence and can be termed as an abuse of process of law.
5. The First Information Report herein relates to an incident that had taken place on 23.6.2010 at about 2.00 p.m. before the Office of the Sub-Registrar, Owk, Kurnool Distrct. On information received from the Sub-Registrar, the de facto complainant (D. Kasaiah), the appellant herein, who is working as Head Constable of Owk Police Station along with P.C.2605 and P.C.2551 rushed to the Sub-Registrar's Office where he found 1. Chinna Venkateswarlu, 2. Midde Srramulu, both residents of Owk village, 3. Srinivaslu who is working as Head Constable, Pathikonda Police Station and his two sons are quarrelling each other, when the de facto complainant tried to stop the quarrel and tried to bring them to the Police Station, Mr. Srinivasulu abused P.C.2605 stating that he is also a police constable and know the rules and how dare they could take them to the Station and so saying abused and caught hold of his collar who was in uniform obstructing them from discharging their official duties. This complaint was signed by the de facto complainant - HC 122 and received by the Station House Officer - (2nd respondent in the Writ Petition) at 3.00 p.m. on the same day and who endorsed and registered it as Cr.No.94/2010 against 1. Chinna Venkateswarlu, 2. Midde Sriramulu, 3. Sunkara Srinivasulu, 4. Sunkara Sreedhar and 5. Sunkara Venkatesh. The petitioners placed on record a computerized copy of the said FIR registered by the S.H.O. as Crime No.94/2010.
6. It appears, however, the de facto complainant again gave another complaint on the same day changing the contents of the complaint. This improved version of complaint says that when the de facto complainant tried to stop the quarrel and tried to bring them to the Police Station, Midde Sriramulu, Head Constable Srinivasulu and his two sons stated that they know the rules, Srinivasulu stated that he is working as Police Head Constable, then they stated that they won't come to station and they can do whatever they want to do, so saying they abused and caught hold of the collar of P.C.2605 who was in uniform saying how dare they are and accordingly the above four persons defamed them and obstructed them from discharging their lawful duties, therefore, it was reported to the S.I. of Police to take action against Midde Sreeramulu, Head Constable Srinivasulu and his two sons. This was also registered as Crime No.94/2010 for the offence under section 354 read with 34 IPC at the same time ie. 3.00 p.m on the same day but in a printed proforma duly filled in manually.
7. The petitioner in the writ petition stated that with the same crime number- 94/2010 - two FIRs were registered by the SHO in respect of the same crime based on two different written complaints lodged by the de facto complainant and endorsed by the S.H.O. The later complaint enlarged the scope of the earlier complaint and certain other overt acts were attributed by misusing the office and abusing the process of the Court and deleted the name of Chinna Venkateswarlu within hours from the registration of the earliest first information report thereby the petitioner and his brother were specifically implicated in the offence.
8. In the first counter filed by the Station House Officer there is no reply to the above averments made by the petitioner. However, in the additional counter filed by him it is stated that due to oversight the computer operator who fed the contents of the FIR in the online system, mentioned the name of Chinna Venkateswarlu arraying him as A.1 though he is in no way concerned with the offence and the rest of the names in the FIR are shown as it is in the online system and this had occurred due to oversight and there were no two FIRs.
9. The learned single after perusing the original general diary produced by the Superintendent of Police by the order impugned held:
"5. When this Court directed the official respondents to produce general diary of the police station, the official respondents exhibited their audacity by throwing into this Court Photostat copy of two sheets styled as general diary dated 23.6.2010, without any authentication. Therefore, this Court directed the Superintendent of Police, Kurnool district to produce original general diary of the police station for the relevant period. The Superintendent of Police, Kurnool District attended this Court in person and produced original general diary. In the Photostat copy of general diary of two sheets thrown into Court by the Assistant Government Pleader, there is no entry at 15.00 hours. But, in original general dairy produced by Superintendent of Police in this Court, there is entry at 15.00 hrs on 23.6.2010. The said entry in general diary does not reveal any explanation offered by Sub-Inspector of Police in his counter- affidavit and additional counter-affidavit. There is attempt on the part of the said Sub-Inspector to manipulate entries in general diary also by preparing a copy which is stated to be a Photostat copy, prepared by suppressing the relevant entry relating to this crime at 15.00 hrs. There are no entries in general diary relating to receipt of two different first informations of the de facto complainant and issuing two types of FIRs in the same Cr.No.94 of 2010. The Sub-Inspector of Police also gave false affidavits in this Court on issuing two different first in the same Cr.No.94 of 2010. Therefore, FIR in Cr.No.94 of 2010 which is vitiated by illegality as well as manipulation coupled with subverting criminal justice system cannot be allowed to stand and it is liable to be quashed under Article 226 of the Constitution of India.
6. When basic document in the crime namely FIR is being quashed, edifice built on such manipulated FIR by way of final report/charge sheet cannot have legs to stand; and consequently the criminal proceedings in C.C.No.254 of 2010 on the file of Judicial Magistrate of the First Class, Banaganapalli are also liable to be quashed in exercise of power under Section 482 Cr.P.C."
10. It was argued on behalf of the appellant-de facto complainant who filed the present appeal that a complaint given under a mistake of fact or by human error, the same can be changed and amended and a procedure has been prescribed for the same. For the purpose an application has to be made to the District Superintendent of Police by the concerned SHO for correction of content of complaint and in turn the Superintendent of Police will forward the same to Central Server, Police Computer Services (PCS) situated at the Office of Director General of Police, Hyderabad and upon permission Superintendent of Police will permit the concerned Station House Officer to make necessary corrections and in the instant case the entire procedure has been followed and referred to the letter dated 18.3.2011 of the Station House Officer addressed to the Superintendent of Police, Kurnool and letter dated 12.5.2011 addressed by the DIG, Kurnool to the Inspector General of Police, Police Computer Services & Standardisation for modification of the FIR in Cr.No.94/2010 of Owk Police station.
The learned counsel appearing for the appellant in W.A.No.1587 of 2012 supported the arguments advanced on behalf of the de facto complainant and further submitted that in any event in the facts and circumstances of the case the learned single Judge is not justified in directing the Superintendent of Police to place the appellant under suspension.
11. The learned counsel appearing for the respondents-writ petitioners supporting the order of the learned single Judge submitted that there was a clear manipulation of the first information report submitted by the de facto complainant and the code of Criminal Procedure doesn't permit registration of two FIRs in respect of the same offence. He further submitted that the rectification of the error, if at all permissible, as contended by the learned counsel for the appellant, was much subsequent to the filing of the charge sheet and the writ petition and in fact there was no permission given by the superior authority.
12. As we can see from paras 4 and 5 above, the variation in the two different complaints given by the de facto complainant who is none else than the Head Constable of the Owk Police Station is manifest that while in the first report Sri Srinivasulu alone was directly implicated in the offence others were not directly implicated, in the later report all the four persons were directly implicated and it was specifically complained that action may be taken against Midde Srramulu, Head Constable Srinivasulu and his two sons which version is not there in the first complaint. Chinna Venkateswasrlu who was arrayed as A.1 in the earliest FIR was not implicated. This later complaint was also signed by the de facto complainant - HC 122, appellant herein, and received by the Station House Officer - (2nd respondent in the writ petition) at the same time i.e. 3.00 p.m on the same day who again endorsed and registered it with the same number i.e. Cr.No.94/2010 on 23.6.2010 for the offence punishable under section 353 IPC read with 34 IPC against 1. Sunkara Srinivaslu, 2. Sunkara Sreedhar, 3. Sunkara Venkatesh and 4. Mide Sriramulu only and the name of Sri Chinna Venkateswarlu was omitted as accused. This FIR was however filled in manually in a printed proforma, not on a computerized format. This changed FIR together with the improved complaint were only sent to the jurisdictional Magistrate on 24.10.2010 who received it at 1.44 p.m.
13. On the basis of the later complaint the Station House Officer (2nd respondent in the writ petition) filed charge sheet into Court on 31.7.2010 and the same was taken cognizance by the Magistrate and registered it as a Calendar Case. Though an order of interim stay was granted by this Court in W.P.M.P.No.30764 of 2010 the Magistrate was not in receipt of the same by the time the charge sheet was taken on file by the Magistrate.
14. From a perusal of the two FIRs registered by the SHO, one in computerized proforma and the other in a printed proforma filled in manually, we have no manner of doubt that there was a clear manipulation of FIR not only by the de facto complainant but also by the Station House Officer in charge of station who endorsed both the versions of First Information Report on the written complaints lodged by the de facto complainant. The Station House Officer has to explain as to how and under what circumstances he received the later FIR from the de facto complainant and registered it again as a crime assigning the same number when the first FIR was already received and registered it as a crime. His explanation that there was a mistake on the part of the computer operator in feeding the data and taking a print out was rightly not accepted by the learned single Judge. If really there was a mistake on the part of the Computer Operator in feeding the data into on line as stated by the SHO, an entry in that regard ought to have been made in the General Diary as to the circumstances under which a second report was lodged by the de facto complainant when the earliest report was already registered. There is no explanation whatsoever as to why two FIRs were lodged by the de facto complainant and why he has endorsed both and registered and why there is no entry in the General Diary in regard to the earliest complaint. His further explanation that there was permission for substitution of the same cannot also be accepted, because the Criminal Procedure Code nowhere provide for any such substitution or for registering two FIRs in respect of the same crime. Therefore, it is manifest that the Station House Officer being in charge of the Police Station has ignored the basic principles in registering an FIR and encouraged for manipulation of the FIR for reasons best known to him. No permission, even if it is permissible, for substitution was placed on record. It is only that a letter dated 18.3.2011 which has been addressed to the Superintendent of Police by the S.H.O. and another letter dated 12.5.2011 addressed by the DIG, Kurnool to the Inspector General of Police, Police Computer Services and Standardization, Hyderabad requesting to modify option of FIRs in Cr.No.94/2010 were placed on record.
15. Further, it is interesting to note that in the letter dated 18.3.2011 addressed to the Superintendent of Police, it is stated that "After create the FIR in APPM, as per the orders of superior officers, prepared another special report and submitted the manual FIR in the Hon'ble Court and also sent the accused to the Hon'ble Court for remand". Therefore, it is a clear case of manipulation where there was registration of two FIRs by the SHO on the basis of two complaints lodged by the de facto complainant. The letter dated 12.5.2011 has also thrown the blame on the computer operator in mentioning the name of Chinna Venkateswarlu in the online FIR though no allegations are made against him. But no reply according permission to the same was placed on record. Further, the Writ Petition was filed on 27.9.2010 and the counter was filed by the SHO on 1.10.2010 and additional counter on 16.12.2011. Obviously, the above letters dated 18.3.2011 and 12.5.2011 were written to shield the manipulation committed by the police officers after the writ petition was filed. If really there was a mistake on the part of the computer operator, the SHO ought to have taken steps immediately after registering the FIR requesting the authorities for rectification. That was not done. But, steps appear to have been taken only subsequent to the filing of the writ petition and subsequent to the filing of counters. Further, it is not only a case of registering two FIRs, but it is also a case of lodging of two FIRs by the de facto complainant, surprisingly; both were endorsed by the Station House Officer. Therefore, how the blame could be thrown on the computer operator? If really there was one complaint and the computer operator had committed mistake why the de facto complainant lodged another complaint and why SHO endorsed on both the complaints lodged by the de facto complainant? If there is a mistake in entering the data on to the online from the earliest complaint lodged by the de facto complainant steps should have been taken immediately for rectification but not after six months after filing of the writ petition. In the counters filed by the SHO, he has not explained as to the existence of two written complaints lodged by the de facto complainant and his endorsement on both the complaints and registering both and forwarding it only the later one to the Court. If really a mistake had crept in entering the data, there is no need to obtain another complaint from the de facto complaint as the mistake could be rectified at the time of filing the charge sheet or by submitting a special report under Section 173(8) CrPC after investigation. Further, it is not the duty of the computer operator who should be arrayed as accused and who should not be in the FIR on the basis of the complaint lodged; it is the duty of the Officer in charge of the Police Station against whom the FIR should be registered on the basis of the complaint lodged. The Officer in charge, therefore, cannot shirk from his responsibility.
16. The de facto complainant is not a lay man. He is working as Head Constable of the Police Station and was deputed to the place of occurrence on the information furnished by the Sub-Registrar. Therefore, the person who gave the complaint can be said to be well versed in drafting the complaints. It can, therefore, be said that the Station House Officer and the de facto complainant with an oblique motive altered the first complaint obviously with an intention to delete the name of one of the accused and to implicate some more. To improve the scope and version in the first complaint the later complaint appears to have been lodged after due deliberations. It may also be noticed that the incident had taken place at 2.00 p.m. on 23.4.2010 and the first information report was registered at 3.00 p.m on the same day whereas copy of the FIR in the manual proforma together with the second complaint was transmitted to the Magistrate on the next day which was received by the Magistrate at 1.44 p.m. This delay on the part of the officer-in-charge in forwarding the FIR to the Court gives an impression that deliberations did take place to modify or improve the FIR. Of course, all these aspects are required to be gone into at the time of the trial. Prima facie, on a consideration of the entire material placed on record, we are of the view that the finding recorded by the learned single Judge that there was manipulation of FIR does not warrant interference by us.
17. Now, the question arises for consideration is whether on the ground that there was manipulation in registering the crime can the Court quash the first Information Report in its entirety and the criminal proceedings already commenced? In our considered opinion, the answer must be in the negative. Sub Section (1) of Section 154 of the Code of Criminal Procedure provides that 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 prescribed in this behalf.
18. Therefore, the legal mandate enshrined in Section 154(1) is that every information relating to the commission of a 'cognizable offence' as defined under section 2(c) of the Code of Civil Procedure if given orally is to be reduced into writing or in writing to 'an officer in charge of a police station' and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called 'First Information Report" and which act of entering the information in the said book is known as registration of a crime for a case. It is thus manifest that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. Therefore, there is no scope to obtain or lodge a second report from the complainant or to alter or to substitute with modified one under the Code of Criminal Procedure. No provision of the Code has been brought to our notice empowering the same.
19. Dealing with the object of "First Information Report" under section 154 of the Criminal Procedure Code, the Privy Council in EMPEROR v. KHWAJA NAZIR AHMAD1 held that the object of the provisions as to an information report (commonly called a first information report) is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and the report can be put in evidence when the informant is examined if it is desired to do so. It was held just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under Sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under Section 561A of the Code of Criminal Procedure, 1898 (corresponding to Section 482 of Code of Criminal Procedure, 1973).
20. In R.P. KAPUR V. STATE OF PUNJAB2 the Supreme Court has dealt with the power of the High Court to quash criminal proceedings at an interlocutory stage and the cases in which such power may be exercised. The Supreme Court observed that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, the Supreme broadly stated the nature and scope of the inherent jurisdiction of the High in the matter of quashing criminal proceedings in the following three categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised.
1. Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of offences alleged.
2. Where the allegations in the FIR, or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the FIR to decide whether the offence alleged is disclosed or not.
3. Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind that distinction between a case where is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where is legal evidence which on its appreciation may or may not support of the accusation n question. In exercising he inherent jurisdiction, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.
21. In STATE OF HARYANA v. BHAJANLAL3 the Supreme Court observed that the extraordinary power under Article 226 or inherent power under Section 482 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary power or inherent powers do not confer an arbitrary jurisdiction the court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. The Supreme Court noted the following categories of cases wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down and precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police offers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently probable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of Code or the concerned Act under which a criminal proceeding is instituted to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
22. In STATE OF ORISSA v. SAROJ KUMAR SAHOO4 while referring to the above decisions the Supreme Court held that while exercising the powers under section 482 Cr.P.C. the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In exercise of the powers the court would be justified in quashing any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise save the ends of justice. The Supreme Court, however, cautioned that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their perspective without sufficient material. But no hard and fast rule as regards cases in which such power can be exercised can be laid down.
23. Therefore, the normal rule is not to interfere with the investigation and criminal proceedings except when the complaint or FIR broadly read does not disclose any offence and can be termed as abuse of process of law and it is not permissible to quash by appreciating the material evidence where charge sheet had been filed or stifle a legitimate prosecution. In SATVINDER KAUR V. STATE5 (Govt. of NCT of Delhi) the Apex Court held that the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation in to the offence alleged to be completed.
24. In DHANALAKSHMI V. R. PRASANNA KUMAR6, the Supreme Court observed "Section 482 empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose an offene or is frivolous, vexations or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the Court to quash the proceedings".
25. In PRATIBHA RANI v. SURAJ KUMAR AND ANOTHER7 the Supreme Curt observed "It is well settled by a long course of decisions of this Court that of the purpose of exercising its power under section 482 Cr.P.C. to quash a FIR a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise allegations".
26. A Full Bench of this Court in GIRISH SARWATE v. STATE OF A.P.8 following the decisions of the Supreme Court in R.P. Kapur's case and Bhajanlals's case held that the inherent powers to the High Court are available to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice and such inherent power is not limited by any provision in the Criminal Procedure Code.
27. The Supreme Court in CHAND DHAWAN (SMIT) v. JAWAHAR LAL AND OTHERS9 reiterated the law in the following terms:
'This Court has in various decisions examined the scope of the power under Section 482 Cr.P.C. and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the court of otherwise to secure the ends of justice. No flexible guidelines or rigid formulae can be set out and it depends upon the facts and circumstances of each case where in such power should be exercised. When the allegations in the complaint prima facie constitute e the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceeding should be an abuse of the process of the court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint."
28. When the factual position of the case at hand is considered in the light of the above principles of law highlighted, the inevitable conclusion is that the learned single Judge is not justified in quashing the FIR and the proceedings before the Magistrate after the charge sheet is filed. In the instant case, whether we take the earliest information report or the later, in our opinion, prima facie, both the reports disclose commission of offence and does not disclose abuse of process of law, and, as such, it is not possible or permissible in the light of the law laid down by the apex court to quash the first information report even though manipulation did take place in registering the crime. On the ground of manipulation in registering the crime the criminal law set in motion cannot be set at naught particularly when the both the FIRs discloses commission of an offence. As held by the Supreme Court power cannot be exercised to stifle a legitimate prosecution.
The learned single Judge in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India as also under the inherent powers under Section 482 of the Code of Criminal Procedure has exceeded the jurisdiction in quashing the first information report as also the criminal proceedings initiated before the jurisdictional magistrate. When both the FIRs prima facie disclose an offence under section 354 IPC the High Court is not empowered to quash the same and the criminal proceedings. Therefore, the learned single Judge is not justified in quashing the FIR and the criminal proceedings.
29. The Supreme Court in T.T. ANTONY v. STATE OF KERALA10 dealing with the aspect whether a second FIR can be registered in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences, it was held:
"18. An information given under sub-section (1) of Section 154 Cr.PC. 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 information 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 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 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. 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 eh scheme of Cr.P.C. 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.
19. The Scheme of Cr.P.C. 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 absis of the evidence collected, he has to form an opinion under Section 169 or 170, as th 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 of more further reports; this the import of sub-section (8) of Section 173 CrPC. "
Referring to Section 173(8) of CrPC empowering the police to make further investigation and filing of further reports, it was held:
" 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 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 Ram Lal Narang v. State (Delhi Admn.)11 it was, however, observed that it would be appropriate to consider further investigation with the permission of the Court. However, the sweeping power of investigation does not want subjecting a citizen each time to fresh investigation by the police in respect of the me incident, giving rise to one or moir 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."
30. In the above case, the Supreme Court held that there can be no second FIR in respect of the same offence and only information about commission of cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR under section 154 CrPC and quashed the second FIR. In the instant case, however, though the first information report lodged by the de facto complainant has been registered as Crime No.94 of 2010 in the on line, but the de facto complainant again lodged another improved complaint and the same has also been registered as Crime No.94 of 2010 manually, but actually, the SHO forwarded the later complaint only in the printed proforma to the Magistrate together with the later complaint lodged by the de facto complainant which was taken on file by the Court and charge sheet has been filed pursuant thereto and numbered as C.C.No.240 of 2010.
31. Antony's case is also distinguishable with the facts on hand. In the above case, already the first information report was registered. The case relates to an incident of police filing in which five persons died. Initially two crimes were registered. A commission of enquiry was appointed in regard to the incident and on the basis of the findings of the commission of inquiry another crime was registered by the police. The Supreme Court held that in respect of the same offence no second FIR can be registered. In the instant case, though the first FIR was registered the same was not forwarded to the Magistrate together with the earliest complaint lodged by the de facto complainant. In our opinion, Antony's case has application only to the extent that no second FIR in respect of the same offence can be registered.
32. Now the question arises is how to rectify the mistake or manipulation occurred in registering the crime and what will happen to the earliest first information report lodged by the de facto complainant. Question also arises what will happen to the charge sheet/final report which was already taken on file by the Court filed pursuant to the second information report which was transmitted to the jurisdictional magistrate along with the complaint lodged by the de facto complainant. No doubt, in law, it is the earliest first information report that should be taken into consideration. Admittedly, though the first complaint lodged by the de facto complainant has been registered as FIR by the SHO neither the copy of the FIR registered on online nor the complaint has been forwarded to the jurisdictional Magistrate, but it is only the FIR registered manually on the basis of the later complaint lodged by the complainant together with the later complaint has been forwarded to the jurisdictional magistrate and on the basis of the same a charge sheet has been filed. In such circumstances and since we are inclined to set aside the order of the learned single Judge on ground that both the complaints discloses commission of an offence and keeping in view the law laid down by the Apex court, in our opinion, the later First Information Report will stand.
33. The above view of ours is justified for yet another reason. Any direction by this Court now to substitute the later FIR with that of the earliest FIR by quashing the later FIR at this stage would lead to complication and is not permissible even under the scheme of criminal investigation under the Code of Criminal Procedure as the charge sheet had already been taken on file by the Magistrate. It would amount to setting at naught the criminal law which had already been set in motion and we have to again set the criminal law into motion by registering the earliest FIR and forward it again to the jurisdictional Magistrate and again filing a charge sheet on the basis of the substituted first information report. All these would not be possible at this stage as the same would vitiate the proceedings being contrary to the procedure contemplated under the Code. Further, as already held, prima facie, whether it is the FIR lodged at the earliest point of time or the later one, both discloses commission of offence, whether disclosure of such offence is against all the accused or some is a matter to be established at the time of appreciating the evidence that may be adduced by the prosecution before the Court. In our view, since already the later first information report has been registered and forwarded to the Court and charge sheet had already been filed, the earliest first information report cannot now be substituted with the present one.
34. The Supreme Court in T.T. ANTONY v. STATE OF KERALA while quashing the second FIR however held that the same does not preclude the investigating agency from seeking leave of the Court for making further investigations and filing a further report or reports under section 173(8) CrPC before the competent Magistrate after seeking leave of the Court.
35. In this connection, we may refer to Clause (8) of Section 173 of the Code of Criminal Procedure which provides for further investigation in respect of an offence after a report under sub-section(3) has been forwarded to the Magistrate. Section 173 provides for submission of report by police officer on completion of investigation. Sub-section (2) provides that as soon as the investigation is completed the officer in charge of the police station shall forward to magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Sub-section (8) which is relevant for our consideration reads thus:
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed, and the provisions of sub-section (2) to (6) shall, as far as may be apply in relation to such report or reports as they apply in relation a report forwarded under sub-section (2).
Therefore, since under sub-section (8) the Officer-in-charge is empowered to forward a further report, he can submit an additional report and the Magistrate keeping in view the circumstances of the case has to take the same also on file and to be proceeded with.
36. Therefore, the prosecution would be at liberty to file a further report under section 173(8) CrPC bringing out the reasons for not registering the earliest report, if necessary, by making further investigation as required under section 156 CrPC, with the permission of the Court. At the same time, it would be open to the petitioners to contend that the later FIR should be taken into account so far as it is consistent and corroborative with the earliest FIR and only that part of the second FIR alone should constitute as FIR. The petitioners are also given the liberty to produce the same before the Court in support of their case. These are the aspects which have to be gone into by the trial court while appreciating the entire material evidence that may be placed on record.
37. We have earlier upheld the finding recorded by the leaned Single Judge that there was manipulation of the FIR while registering the crime. Therefore, the matter need to be examined on administrative side by the Superintendent of Police constituting an enquiring authority to find out where the lapse had occurred and who are the persons or person responsible for the same. What disciplinary action is required to be taken against the erring officers is within the domain of the administrative authority. This Court, in exercise of the powers under Article 226 of the Constitution of India or the inherent powers under Section 482 of Code of Criminal Procedure cannot, direct that a particular action should be taken or an officer be placed under suspension in a matter of this nature. Therefore, the order of the learned single Judge to the said extent is also liable to be set aside.
38. For the reasons aforesaid, the appeals are partly allowed in the following terms:
1. The order of the learned single Judge is hereby set aside.
2. The proceedings in C.C.No.254 of 2010 on the file of the Judicial Magistrate of First Class, Banaganapalli initiated pursuant to the charge sheet filed in Cr.No.94 of 2010 of Owk Police Station be restored back to the file of the Magistrate and the same shall be proceeded with by the Magistrate in accordance with law.
3. The petitioners are at liberty to take all such pleas as are available to them in law and in the light of the observations made above.
4. The Superintendent of Police, Kurnool shall cause enquiry as to the manipulation occurred while registering the crime by the Officer in charge of the Police Station and initiate appropriate disciplinary proceedings as well as criminal proceedings on the basis of the findings of enquiry against the officer or officers responsible for the manipulation and submit compliance report to this Court.
PINAKI CHANDRA GHOSE, CJ VILAS V. AFZULPURKAR, J 4th January, 2013