Patna High Court - Orders
Gobardhan Sahani vs The State Of Bihar on 26 August, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.2448 of 2013
======================================================
1. Gobardhan Sahani S/O Late Gajadhar Sahani Resident Of Village Majhar
Gothiya Tola, P.S. Pakari Dayal, District East Champaran.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2.Officer In-charge, Pakri Dayal P.S., District East Champaran.
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anil Kumar, Adv.
For the Opposite Party/s : Mr. Ram Anugrah Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 26-08-2013In this case, petitioner has made a prayer for quashing the first information report of Pakri Dayal P.S.Case No. 77 of 2011 for the offences u/s 193, 199 IPC and 25(1B)a of the Arms Act on the report of Sub-Inspector of Police, Pakari Dayal Police Station.
2. From the facts of the present case, it will be relevant to consider the case which was filed by the petitioner as Pakari Dayal P.S.Case No. 12 of 2007 dated 5th March 2007 u/s 147, 148, 506, 504, 32B IPC and 25(1-B)(a)/37 of the Arms Act where allegation was made by the petitioner that the accused persons, namely, Baiju Sahni and others had given a call on 4th March 2007 in the evening by Mobile No. 9430256578, hurled threatening which he informed to the persons of his supporters of area. After a while, Baiju Sahni along with some persons forming Patna High Court Cr.Misc. No.2448 of 2013 2\25 a group, entered into his drawing room and started abusing and threatening to assault. The persons who were sitting in his Verandah saw Baiju Sahni was pulling out country-made pistol but was overpowered. All of them caught hold of him which was informed to the Police immediately. The names of persons who had come in group were mentioned in the FIR and on that basis the aforesaid case was instituted. Police started investigation. Number of witnesses were examined, it was found, the allegation made by the petitioner of the case with regard to holding country-made gun was found to be false and, accordingly, charge-sheet was submitted u/s 323, 504, 506/34 IPC. The Police at the same time recorded that the case should be lodged against the informant (petitioner) u/s 193, 199 IPC and 25(1-B)a of the Arms Act. Accordingly, the case in hand was recorded. In the FIR it has been mentioned that the allegation made by the petitioner against Baiju Sahni and others of entering into house of the petitioner with the country-made pistol was a false and concocted story found during investigation and Police requested for instituting a case against the present petitioner.
3. Counsel for the petitioner submitted that the present FIR is completely de hors to law as for one incident there cannot be two FIRs. At best, it can be a statement under Section 162 of the Code of Criminal Procedure (hereinafter, in short, Patna High Court Cr.Misc. No.2448 of 2013 3\25 referred to as the „Code‟) and prayed for quashing of the same.
4. Before coming to the right conclusion, it will be appropriate to consider the relevant provisions of the Code and the judgments of the Hon‟ble Supreme Court on the point of maintainability of 2nd FIR with regard to the same incident.
"Section 154 Cr.P.C.: 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.
(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 sub-section (1) may send Patna High Court Cr.Misc. No.2448 of 2013 4\25 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 approved 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."
5. On reading of Section 154, four mandates appear to have been given to the Officer In-charge of the Police Station; firstly, 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 in writing by him or under his direction, secondly, it should be read over to the informant, thirdly, that every such information whether given in writing or reduced to writing, shall be signed by the informant and the 4th mandate is the substance of such information shall be entered in the Station House Diary. Sub-section (2) entitles the informant to receive a copy of information, as recorded under sub-section(1) free of cost. Sub-section(3) says that in the event of an Officer In- charge of the Police Station refusing to record the information has Patna High Court Cr.Misc. No.2448 of 2013 5\25 postulated under sub-section(1) person aggrieved thereby may send the substance of such information in writing and post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct investigation to be made by a Police Officer sub-ordinate to him. If he is satisfied that the information discloses a cognizable offence.
6. Section 155 deals with non-cognizable offences and investigation of such cases. Section 155(2) provides that no Police officer shall investigate a non-cognizable offence without the order of the Magistrate having power to such case or commit the case for trial. Section 156 of the Code provides that any Officer In-charge of the Police Station may without the order of Magistrate investigate any cognizable offence which the court having jurisdiction over the local area within the limits of such station shall have power to enquire into or try under the provisions of Chapter-XIII of the Code. Section 157 deals with the provision for investigation which provides that immediately on receipt of information, the Officer In-charge of the Police Station shall send a report of every cognizable offence to the Magistrate empowered to take cognizance of the offence and then proceed to investigate or direct his sub-ordinate Officer to investigate the facts and circumstances of the case. The recording of FIR sets the criminal law in motion and makes the commencement of investigation Patna High Court Cr.Misc. No.2448 of 2013 6\25 which confined to formation of opinion under section 169 or 170 of the Code and after that forwarding of the Police report u/s 173 Cr.P.C. It sometimes happens that more informations than one are given to the Police in respect of the same incident involving more than one cognizable offence to the Officer In-charge who is not required to enter every one of them in the station diary. Information made orally or in writing after commencement of investigation being of cognizable offence disclosed from the facts mentioned in the FIR and entered into the station diary by the Police Officer subsequent information itself constituting a cognizable offence will it be a statement under Section 162 of the Code or would constitute or treated to be the 2nd FIR, came for consideration before the Hon‟ble Apex Court, where the Hon‟ble Apex Court provided the principle criterion under what circumstances it would amount to 2nd FIR.
7. The issue of 2nd FIR came up for consideration before the Hon‟ble Supreme Court in the case reported in (1979)2 SCC 322 (Ram Lal Narang v. State (Delhi Administration). In this case great antiquity of Sunga period was stolen. An FIR was lodged, the pillar recovered and a charge-sheet was filed. During the pendency of the case, one Narendra Nath Malik (N.N. Malik) filed an application before the Magistrate claiming to be a research scholar, requesting for custody of pillars Patna High Court Cr.Misc. No.2448 of 2013 7\25 to enable him to make a detailed study. The said pillar was handed over to him for the aforesaid purpose on execution of personal bond by Sri Malik. The pillar remained in his custody for a long period and thereafter it was returned. But after some time, it was found that the returned pillar was not the original pillar but a fake one which led to institution of criminal case against N.N.Malik and H.N.Mehra. After investigation, the said pillar was located and found in London in the warehouse of Messrs Spink & Co. and it was found that Mr. Ramlal Narang and other family members conspired with Mr. N.N.Malik and H.N.Mehra, they replaced the said original pillar with the a fake pillar and smuggled out the same to London. The point was raised that for the same offence, 2nd FIR is not permissible. The Hon‟ble Supreme Court has taken the view that the question is whether the two conspiracies were in substance and tenor, same. When the later conspiracy was found of larger canvas, it could not be equated with earlier conspiracy was of narrower dimension, refused to interfere with the proceeding arising from the 2nd FIR. It may be relevant to quote the relevant Paragraph-20 of the judgment which reads as follows:
"Para-11. ........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 Patna High Court Cr.Misc. No.2448 of 2013 8\25 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 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 Patna High Court Cr.Misc. No.2448 of 2013 9\25 conspiracy to dispose of the stolen property was not known.
Para-20. Anyone acquainted with the day-to-day working of the criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and Patna High Court Cr.Misc. No.2448 of 2013 10\25 submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his further course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any Patna High Court Cr.Misc. No.2448 of 2013 11\25 excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."
8. This point again came for consideration in T.T.Antony v. State of Kerala: (2001)6 SCC 181. In this case, one Mr. M.V.Raghawan who left CPI(M) and formed his own party in the name of Communist Marxist Party (CPM) and became the Minister of United Democratic Front. Sri Raghawan against the advice of district administration, he finalized his visit for inauguration of the "Evening branch of Cooperative Urban Bank"
His visit turned to be turmoil as the public resisted his Patna High Court Cr.Misc. No.2448 of 2013 12\25 inauguration, which led to Police firing, caused death of five persons and six others were injured. Two cases were registered and investigation continued. After some time, there was change of the Government and L.D.F Government installed and in the changed wind, a new case was instituted after three years. The same was challenged before the Hon‟ble Supreme Court, stating that for the same incident, two FIRs are not permissible. At best any further information received during investigation would be a statement u/s 162 Cr.P.C. The Court has held that if the gravamen of the charge in the two FIRs, the 1st and the 2nd are in truth and substance same, registering the second FIR and making fresh investigation and forwarding the report u/s 173 of the Code will be irregular and the Court cannot take cognizance of the same. It will be relevant to quote Para-21 of the judgment which is as follows:
"21............This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It appears to us that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different -- the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. It was pointed out that even under the Code of 1898, after filing of final report, there could be further investigation and forwarding of further report. The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Patna High Court Cr.Misc. No.2448 of 2013 13\25 Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs -- the first and the second -- is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same."
9. In the case of Kari Choudhary v. Sita Devi:
(2002)1 SCC 714, the fact was that the mother in-law figured as complainant in the case of culpable homicide of her daughter in-
law eventually she was transposed as one of the delinquent offender of the said murder. In this case, Sita Devi lodged an FIR about the death of her daughter in-law. The Police found foul in the action of Sita Devi and ultimately concluded that murder was committed pursuant to conspiracy hatched by her and other inmates and filed a report stating that statements were false but the Police continued with the investigation and after that a new FIR was lodged. The Magistrate on the submission of report of Police, about falsity of the case, took cognizance u/s 188 and 211 of the Code. The same was challenged and the matter was remanded back, objection was raised the 2nd FIR was impermissible. The Court has held that two FIRs were for different purposes and the Police was right to continue the investigation into the offence of murder of daughter in-law and refused to interfere that the lodging of 2nd FIR, as the Hon‟ble Supreme Court was of the view that the interference would Patna High Court Cr.Misc. No.2448 of 2013 14\25 amount to leave the real culprit go scot-free and has opined that the elementory object of every investigation is to find out whether the offence that has been committed and if so, who has committed the crime. It will be relevant to quote Para-11 of the judgment which is as follows:
"11. 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 offences alleged have been committed and, if so, who have committed it."
10. In another case Chitra Shivraj v. State of A.P.:
(2010)14 SCC 444, a lady died out of burn injury. Case was lodged on the basis of her statement while she was under
treatment u/s 307 IPC but she died on 1 st August 1999 due to septicemia which was caused due to burn injury, the same was Patna High Court Cr.Misc. No.2448 of 2013 15\25 reported by the husband of the deceased to Police for registering a 2nd FIR. In that context, the Hon‟ble Supreme Court interfered with the 2nd FIR. It is relevant to quote Para 17 & 18 of the aforesaid judgment which is as follows:
"17. If one looks at the facts of the case and both informations given to the authorities, it is clear that in fact FIR No. 46 of 1999 was recorded on the basis of the statement made by the deceased when the deceased was alive and upon her death, which had nexus with the injuries, further information was given on 2-8-1999, and that was recorded as FIR No. 152 of 1999.
In our opinion, it was not necessary to record another FIR as the death was the result of septicaemia which was due to the burn injuries.
18. Looking to the facts of the present case, in our opinion, in fact the second FIR was nothing but a consequence of the event which had taken place on 21-4-1999.
In the circumstances, the contents of the so-called second FIR being FIR No. 152 of 1999, could have been incorporated in the police diary as a result of further information or event which had taken place in pursuance of the first offence, which had been recorded under FIR No. 46 of 1999."
11. In Upkar Singh v. Ved Prakash (2004)13 SCC 292, the Hon‟ble Supreme Court explained the judgment of T.T.Anthony (supra) case and held that registration of 2nd case is not excluded if the complaint is in the nature of counter claim. What has been excluded is that any further claim by the same complainant against same accused, registration of further complaint is prohibited because the investigation in this regard Patna High Court Cr.Misc. No.2448 of 2013 16\25 had already started and any further complaint against the same accused will amount to an improvement of facts mentioned in the original complaint unless the same is prohibited u/s 162 of the Code. The Court held, rule of prohibition of 2nd complaint will not apply to a counter claim by the accused, in the 2nd complaint allegation has been made of different version of the same incident not against the same person. Thus in a case if allegations made in two complaints are different in versions in respect of same incident, not required to be interfered with the 2nd FIR and investigation would be carried under both of them by the same investigating agency. Thus filing of FIR giving a counter claim in respect of the same incident having different version of the event is permissible in law.
12. In another case Babubhai v. State of Gujrat :
(2010)12 SCC 254, the Hon‟ble Supreme Court considered the issue of lodging of 2nd FIR. In this case, two communities for same issue fought against each other which resulted in death of some persons, led to lodging of two FIRs. The Hon‟ble Supreme Court has considered the earlier judgments and held if an FIR is lodged against accused persons for an incident, after some time, a subsequent FIR is lodged, for the same transaction of facts is not permissible but counter claim, a fact with different version in lodging of two FIRs is permissible. It is relevant to quote Para-20 Patna High Court Cr.Misc. No.2448 of 2013 17\25 and 21 of the said judgment:
"20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC is a very important document. It is the first information of a cognizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 CrPC.
21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted."
13. The issue of lodging of 2nd FIR was considered by the Hon‟ble Supreme Court in the case of Amitabh Anil Chandra Sah v. CBI (2013)6 SCC 348=2013(2) PLJR 373 where the Hon‟ble Supreme Court considered earlier judgments, Patna High Court Cr.Misc. No.2448 of 2013 18\25 decided the principle on 2nd FIR in Para-52 (d) of the judgment. The Court has taken the view that a case of fresh investigation based on successive FIR not being of counter claim filed in connection with the same or connected cognizable offence committed in course of same transaction and in respect of which pursuant to first FIR either the investigation under way or the opinion has been forwarded to the Magistrate is liable to be interfered with. The Court has carved out the case wherefrom one incident may lead to case and counter case have been lodged by the parties against each other. The issue of instituting 2nd FIR has been culled out and summarized, as what to be done, when a subsequent fact comes during the investigation before the Police has been dealt with in Para-52 of the judgment which is as follows:
"Para-52 Ram Lal Narang was cited to be an authority carving out an exception to the general rule that there cannot be a second FIR in respect of the same offence. This Court in the said decision, held that a second FIR would lie in an event when pursuant to the investigation in the first FIR, a larger conspiracy is disclosed, which was not part of the first FIR. In the case of hand, while entrusting the investigation of the caser relating to the killing of Patna High Court Cr.Misc. No.2448 of 2013 19\25 Sohrabuddin and Kausarbi to CBI, this Court, by order dated 12-1-2010 expressed a suspicion that Tulsiram Prajapati could have been killed because he was an eyewitness to the killings of Sohrabuddin and Kausarbi".
"Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House Diary, the officer-in-charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same Patna High Court Cr.Misc. No.2448 of 2013 20\25 transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution".
14. In Surender Kaushik v. State of U.P.: (2013)5 SCC 148 the issue of impermissibility of 2 nd FIR has been considered and in the said case, the issue of case and counter case against each other came for consideration. The Court held that lodgment of 2nd FIR is not permissible in respect of same and one incident. The concept of sameness has been given a restricted meaning which does not surpass filing of 2nd FIR relating to same or connected cognizable offence. What is prohibited is further complaint by the same complainant and against the same accused subsequent to registration of case under the Code for an investigation in that regard has already commenced. As allowing registration of further complaint would amount to improvement of facts mentioned in the earlier complaint. It will be appropriate to quote Para-24 of the said judgment:
"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 Patna High Court Cr.Misc. No.2448 of 2013 21\25 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 Singh9, the prohibition does not cover the allegations made 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."
nd
15. The issue of lodgment of 2 FIR again came for consideration and Hon‟ble Supreme Court affirmed the view of test of sameness in Antu Choudhary vs. State of UP 2013 (6) SCC
384. It will be apt to quote Para-25 and 26 of the judgment as follows:
Para: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 t he entire case of prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that Patna High Court Cr.Misc. No.2448 of 2013 22\25 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 investigation 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 rationalize 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 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 Patna High Court Cr.Misc. No.2448 of 2013 23\25 Court in Babubhai v. State of Gujarat. This judgment clearly spells out the distinction between the two FIRs relating to the same incident and two FIRs relating to different incidence or occurrences of the same incident, etc. Para:26 To illustrate such a situation, one can give an example of the same group of people committing theft in a similar manner in different localities falling under different jurisdictions. Even if the incidents were committed in close proximity of time, there could be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, rights may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the rights would not debar registration of second FIR in different areas. However, to the contra, for the same event and offences against the same people there cannot be a Patna High Court Cr.Misc. No.2448 of 2013 24\25 second FIR. This Court has consistently taken this vies and even in Chirra Shivraj v. State of A.P., the Court took the view that : (SCC p.448,para-14) "14. ... There cannot be a second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first information report."
16. In view of the above discussions, it is apparently clear that a 2nd FIR is prohibited in a case with regard to same incident against same accused persons. But a counter claim and the counter version which leads to 2nd FIR is not prohibited and the Police can proceed with these cases.
17. In the present case, petitioner lodged Pakri Dayal P.S.Case No. 12 of 2007 u/s 147, 148, 506, 504, 32B IPC and 25(1-B)a/37 of the Arms Act. The Police after investigation has found the story that Baiju Sahni accused of the aforesaid case carrying arms was false and concocted and submitted the charge-
sheet against Baiju Sahni u/s 323, 504, 506/34 IPC and the Police registered another case against petitioner Gobardhan Sahni for lodging false case keeping illegal arms for offence under Sections 193, 199 IPC and 25(1-B)a of the Arms Act.
Patna High Court Cr.Misc. No.2448 of 2013 25\25
18. In the present case on analysis of the aforesaid facts that the allegation made by the present informant that Baiju Sahni and others had entered into the house with the arms was wrong statement, rather it is the petitioner who was with arms and wrongly framed Baiju Sahni and others under the Arms Act. Though both the cases are arising from the same incident but in one case Baiju Sahni and others are the accused but in the subsequent case the present petitioner has been booked as an accused. The allegation in both the cases cannot fall in the category of sameness as both the cases are in the nature of counter claim/counter version of the same incident. As per the Hon‟ble Supreme Court judgments, as aforesaid, if the 2nd case gives the counter claim or the counter conversion will not fall within the zone of sameness. Thus this Court is of the view that the prayer for quashing the FIR arising from Pakri Dayal P.S.Case No. 77 of 2011 is not sustainable, as discussed above, thus 2nd FIR cannot be quashed and the Police will proceed with the investigation and take action in accordance with law.
19. Accordingly, this petition fails and is dismissed.
Jay/- (Shivaji Pandey, J)