Allahabad High Court
Dr. Mukesh Kesarawni vs The State Of U.P on 7 May, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 28 Case :- U/S 482/378/407 No. - 107 of 2011 Applicant :- Dr. Mukesh Kesarawni Opposite Party :- The State Of U.P Counsel for Applicant :- Yogesh Kesarwani Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh,J.
1. The present petition under Section 482 Cr.P.C. has been filed for quashing the charge sheet no.215 of 2008 submitted in Case Crime No.323 of 2008, under Sections 420, 467, 468 and 471 IPC, Police Station Kaiserbagh, District Lucknow as well as the summoning order dated 22.10.2008 passed in Case No.4030 of 2008 and the entire proceedings of Case No.4030 of 2008.
2. The petitioner is a Post Graduate Doctor in Pediatrics discipline having M.B.B.S. M.D. (Pediatrics) from King George Medical College, Lucknow. On 16.4.2008 Mr. Sahid Parvez, complainant got his six months old son admitted in 'Harman Hospital', Cantt. Road, Lucknow in a very critical condition. It is said that the petitioner and one Dr. Mirza Waqar Beg attended the child, who are the qualified Pediatricians. According to their diagnosis, the child was suffering from Septicemia with brain hemorrhage. It is said that the petitioner and Dr. Mirza Waqar Beg along with two other doctors, namely, Dr. Satish Chandra Bose and Dr. Praveen Kumar Bharti both M.B.B.S. as a team attended the child and did their best efforts, but the child could not survive and he was declared dead on 18.8.2008 at 8.15 A.M. After the child died, family members of the child created ruckus in the hospital and damaged the hospital property and manhandled the doctors, nurses, para clinical staff and the other managerial staff. On information, the police came to the hospital. A complaint was given by the hospital administration against the persons involved in damaging the property and assaulting the doctors, nurses and para clinical staff.
3. The police registered the Non Cognizable Report on the complaint given by the hospital. However, on a complaint given by the father of the child, an FIR at Case Crime No.119 of 2008 under Section 304A IPC was registered against the named four doctors, including the petitioner.
4. Writ Petition Nos.4611 (MB) of 2008 (Dr. Mukesh Kesarwani Vs. State) and 6339 (MB) of 2008 ( Dr. Mirza Waquar Beg vs. State) were filed before this Court. This Court stayed the arrest of the petitioner and Dr. Mirza Waquar Beg. However, vide order dated 28.8.2008 this Court finally disposed of the writ petitions taking on record the counter affidavit of the investigating officer Jagat Singh Verma. According to him, Sections 420, 467, 468, and 471 IPC had also been added on the basis of the information/statements recorded under Section 161 Cr.P.C. This Court while disposing of the writ petitions, directed the police not to arrest the petitioner without the permission of the Court during the investigation. After passing the aforesaid order whereby the police was restrained from arresting the petitioner, the Station House Officer allegedly directed the investigating officer to investigate the offence under Section 304 A IPC only.
5. The second FIR at Case Crime No.323 of 2008 under Sections 420, 467, 468 and 471 IPC relating to the same incident was registered separately on 4.8.2008 after a period of four months from the date of the first FIR. It is alleged that the second FIR of the same incident was registered to circumvent the restraint order regarding the arrest of the petitioner by this Court. The charge sheet was also submitted in pursuance to the second FIR in the court of Special Chief Judicial Magistrate (Customs), Lucknow. Learned Chief Judicial Magistrate has taken cognizance on the second charge sheet and issued summons on 22.10.2008 in Case No.4030 of 2008.
6. Learned counsel for the petitioner submits that for one incident, two FIRs cannot be registered by the complainant. In both the FIRs, the complainant is the same and the allegations are more or less same.
7. Heard Sri Yogesh Kesarwani, learned counsel representing the petitioner and Mr. Anurag Varma, learned AGA representing the State.
8. It is no longer res integra that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable office or same occurrence giving rise to one or more cognizable offences. Only information about commission of a 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 Cr.P.C. All such subsequent informations will be covered by Section 162 Cr.P.C. Office in-chage of the police station has to investigate not merely the cognizable offence reported in the FIR, but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C. However, even if after conclusion of the investigation pursuance to filing of the FIR and submission of report under Section 173(2) Cr.P.C., the officer in-charge of the police station comes across any further information pertaining to the same incident, he can make further investigation, normally with the leave of the Court and forward the further evidence, if any collected, with further report or reports under Section 173 (8) Cr.P.C.
9. Supreme Court in the case of T.T. Antony vs. State of Kerala and others, (2001) 6 SCC 181 in paragraphs 19 and 20 held as under :-
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC."
10. Further, in the case of Babubhai v. State of Gujarat and others, 2010 AIR SCW 5126:(2010)12 SCC 254 in paragraph 13 the Supreme Court held as under :-
"13.In T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that:
"There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences."
(emphasis supplied) The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the police station diary by the officer-in-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called "CrPC") and all other subsequent information would be covered by Section 162 CrPC for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the investigating officer has to file one or more reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the investigating officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) CrPC. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of CrPC."
15. The Court further observed as under: (T.T. Antony case [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , SCC p. 200, para 27) "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. ... However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
(emphasis added)"
11. It is well settled that two FIRs in respect of the same offence or incident forming part of same transaction as contained in first FIR is not permissible under the scheme of Cr.P.C. However, second FIR for an unrelated incident or an offence which does not fall within the ambit of the first FIR, is permissible.
12. Supreme Court in the case of Anju Chaudhary v. State of Uttar Pradesh and another, (2013) 6 SCC 384 in paragraph 14 held as under :-
"14. On the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence. However, the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officer-in-charge of a police station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the investigating agency has no determinative right. It is only a right to investigate in accordance with the provisions of the Code. The filing of report upon completion of investigation, either for cancellation or alleging commission of an offence, is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as police is concerned, may be in a given case, subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing an offence or otherwise, re-examination by the investigating agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect, then possibility of abuse of investigating powers by the police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, reinvestigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. (Ref. Reeta Nag v. State of W.B. [(2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] and Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762] of the same date.)"
13. In the present case, the first FIR was registered at case Crime No.119 of 2008 under Section 304A IPC on 17.4.2008 at 10.40 A.M. against Dr. Qayum and the present petitioner alleging that on 16.4.2008 the complainant took his two months old son to the clinic of the petitioner situated at Jai Narain Road. The child was suffering from normal fever. The petitioner told the parents that the child was very serious and referred the child to the Harman Hospital. Child was admitted in the said hospital and after some time the doctors demanded Rs.10,000/-. The child was not allowed to be visited by any family member. The doctors demanded Rs.10,000/- at 1 A.M. and said that the if the parents did not deposit the money, the child would not be treated. The family members anyhow arranged the money as demanded, but the child died in the night. It is said that the child had already died before the doctors demanded money and despite the death of the child, the doctors continued to demand money.
14. In the second FIR, which was registered on 4.8.2008 at Case Crime No.323 of 2008 four months from lodging of the first FIR under Sections 420, 467, 468 and 471 IPC against four persons including the petitioner. It was again said that the child died during the course of treatment around 12:00 in the night on 16.4.2008. However, the doctors told that the child was being treated and they demanded money for treating the child on Ventilator. The parents collected Rs.5,000/- and gave it to the doctors in the morning. The doctors again prescribed medicine for Rs.1600/- it is said that from the post-mortem report, it was clear that the child had died in the night itself. It was also said that to extract money from the parents of the child, the doctors had prepared forged papers and continued with the false treatment, whereas the child had died in the night itself. It was noticed only at 8 A.M. in the morning when sister of the complainant, father of the child went inside and found the child lying dead.
15. Thus, both the FIRs are of the same transaction with regard to the death of the child on 16/17.4.2008. The Investigating Officer had filed an affidavit before this Court in Writ Petitions No.4611 (MB) of 2008 and 6339 (MB) of 2008, wherein it had been said that Sections 420, 467, 468 and 471 IPC have been added. Thus, there was no occasion to lodge the second FIR in respect of the same incident/same transaction.
16. In view of the aforesaid judgements of the Supreme Court, it is clear that the second FIR is not permissible in respect to the same incident/transaction. Thus, submission of the separate charge sheet in the FIR at case Crime No.323 of 2008 and summoning the accused are wholly illegal and liable to be set aside.
In the result, the petition is allowed and the charge sheet no.215 of 2008 submitted in Case Crime No.323 of 2008, under Sections 420, 467, 468 and 471 IPC, Police Station Kaiserbagh, District Lucknow as well as the summoning order dated 22.10.2008 passed in Case No.4030 of 2008 and the entire proceedings of Case No.4030 of 2008 are hereby quashed. However, since the investigation having been carried out in respect of the same incident, second charge sheet may be treated as the supplementary charge sheet and the trial court may proceed accordingly.
(Dinesh Kumar Singh, J.) Order Date :- 7.5.2019 Rao/-