Himachal Pradesh High Court
Kamal Kumar And Another vs State Of H.P. And Others on 30 September, 2024
Neutral Citation No. ( 2024:HHC:9338 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 483 of 2022 .
Reserved on: 3.9.2024 Date of Decision: 30.9.2024.
Kamal Kumar and another ...Petitioners
Versus
State of H.P. and others
Coram
r to ...Respondents
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. Sunny Modgil, Advocate. For the Respondents : Ms. Ayushi Negi, Deputy Advocate General, for respondents No.1 to 3/State.
Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate, for respondent No.4.
Rakesh Kainthla, Judge The petitioners have filed the present petition for quashing of FIR No. 252 of 2014, dated 25.8.2014, registered at Police Station, Una, District Una, H.P. for the commission of offences punishable under Sections 186, 323, 427, 451, 506 and 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/09/2024 20:32:20 :::CIS 2Neutral Citation No. ( 2024:HHC:9338 ) 511 read with Section 34 of Indian Penal Code (IPC) and consequential proceedings arising out of the FIR. It has been .
asserted that petitioner No.1 is the son and petitioner No.2 is the grandson of the informant. The informant sent an application to the Superintendent of Police, Una on 19.3.2014 stating therein that the petitioners had beaten him. The police registered the FIR. The informant prayed for re-investigation of the case. The Superintendent of Police asked for the report from the Additional Superintendent of Police, Una, who submitted a report on 22.4.2014 stating that a Kalandra under Sections 107 and 150 of Cr.PC was prepared. The police registered FIR No. 252 of 2014, dated 25.8.2014, for the commission of offences punishable under Sections 186, 323, 427, 451, 506 and 511 read with Section 34 of IPC against the petitioners. The police had also registered FIR No. 371 of 2023, dated 11.12.2013, regarding the same incident for the commission of offences punishable under Sections 186, 323, 451, 427, 506 and 211 read with Section 34 of IPC as per the directions of the Court based on an application filed by the informant under Section 156(3) of Cr.P.C.
The police investigated the earlier FIR and the matter was compromised between the petitioners and the informant. The ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 3 Neutral Citation No. ( 2024:HHC:9338 ) police filed a cancellation report based on the compromise. The informant admitted that the compromise had been effected .
between the parties but stated that the petitioners had not adhered to the terms and conditions of the compromise. The informant got the second FIR registered against the petitioners regarding the same incident. The police submitted a charge sheet in the second FIR against the petitioners. There is a property dispute between the parties which is civil in nature.
The informant is misusing the process of law to compel the petitioners to settle the civil dispute. The second FIR was registered regarding the same incident. The informant abused the process of law by getting the two FIRs registered regarding the same incident. The criminal proceedings cannot be used to compel the other side to agree to the terms and conditions of the informant. Therefore, it was prayed that the present petition be allowed and the FIR be quashed.
2. The petition is opposed by respondents No.1 to 3 by filing a reply making preliminary submissions regarding lack of locus standi and the petitioners having not come to the Court with clean hands. It was asserted that a written complaint was made to the police by the informant on 24.8.2013 against the ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 4 Neutral Citation No. ( 2024:HHC:9338 ) petitioners. The police filed a Kalandara under Sections 107 and 150 of Cr.P.C. in the Court of learned Sub Divisional Magistrate, .
Una on 27.8.2013. An FIR No. 371 of 2013 was registered on 11.12.2013 as per the order passed by learned Judicial Magistrate First Class-I, Una under Section 156(3) of Cr.P.C. The police filed a cancellation report in the Court of learned Chief Judicial Magistrate, Una on 20.3.2014. The police registered an FIR No. 252 of 2014, dated 25.8.2014 for the commission of offences punishable under Sections 186, 323, 427, 451, 506 and 511 read with Section 34 of IPC. The police conducted the investigation and filed a charge sheet against the petitioners on 30.10.2014.
The matter is pending before the competent Court of law;
therefore, it was prayed that the present petition be dismissed.
3. A separate reply was filed by respondent No.4/informant reproducing the contents of the FIR. It was admitted that the informant had filed a complaint before the police on 24.8.2013 on which Kalandra under Sections 107 and 150 of Cr.P.C. was prepared and filed in the Court of learned Sub Divisional Magistrate, Una. It was also admitted that the informant filed an application under Section 156(3) of Cr.P.C.
and the learned Magistrate ordered the registration of FIR. FIR ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 5 Neutral Citation No. ( 2024:HHC:9338 ) No. 371 of 2013, dated 11.12.2013 for the commission of offences punishable under Sections 186, 323, 451, 427, 506 and 511 read .
with Section 34 of IPC was registered against the petitioners at Police Station, Una, H.P. The police filed a cancellation report on 20.3.2014. Another FIR was lodged as per the orders passed by learned Additional Chief Judicial Magistrate, Court No.1, Una, H.P., dated 25.8.2014, bearing No. 252 of 2014 for the commission of offences punishable under Sections 186, 323, 451, 427, 506 and 511 read with Section 34 of IPC. The police filed a charge sheet for the commission of offences punishable under Sections 427, 451, and 506 read with Section 34 of IPC. The matter was listed for consideration on charge on 16.7.2022. The petitioners are residing in the house of the informant and are not allowing the informant to enter the house. The petitioners want to grab the property of the informant. The informant had agreed to compromise the matter earlier; however, the petitioners did not adhere to the compromise. The present petition is an abuse of the process of law; therefore, it was prayed that the present petition be dismissed.
4. A supplementary affidavit was also filed by the informant asserting that the police had summoned the parties ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 6 Neutral Citation No. ( 2024:HHC:9338 ) to the Police Station and got the compromise effected between them. The petitioners are not adhering to the compromise. The .
cancellation report is pending before the learned Judicial Magistrate First Class. The informant filed an application before the learned Sessions Judge for transferring the cancellation report and the charge sheet to the same Court.
5. I have heard Mr Sunny Modgil, learned counsel for the petitioners, Ms Ayushi Negi, learned Deputy Advocate General, for respondents No.1 to 3/State and Mr Ajay Sharma, learned Senior counsel assisted by Mr Atharv Sharma, learned counsel for respondent No.4.
6. Mr Sunny Modgil, learned counsel for the petitioners submitted that the contents of FIR No. 371, dated 11.12.2013 and FIR No. 252, dated 25.8.2014 are the same. It is not permissible to register two FIRs regarding the same incident. Therefore, he prayed that the present petition be allowed and the FIR No. 252 of 2014 be ordered to be cancelled. He relied upon the judgments of T.T. Antony Vs. State of Kerala, Cr. Appeal No. 689 of 2001, decided on 12.7.2001, Tarak Dash Mukharjee and others Vs. State of Uttar Pradesh and others, Cr. Appeal No. 1400 of 2022, decided on ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 7 Neutral Citation No. ( 2024:HHC:9338 ) 23.8.2022, Anju Chaudhary Vs. State of U.P. and another, Cr. Appeal No. 2039 of 2012, decided on 13.12.2012 and Pattu Rajan Vs. State of .
Tamil Nadu, Cr. Appeal Nos. 680 and 681 of 2009, decided on 29.3.2019 in support of his submissions.
7. Ms Ayushi Negi, learned Deputy Advocate General, for respondents No.1 to 3/State submitted that the previous FIR was compromised between the parties. The petitioners did not adhere to the compromise and the informant filed a second FIR.
A charge sheet was also filed before the competent Court of law.
The competent Court is seized of the matter and this Court should permit the competent court to decide the matter. She prayed that the present petition be dismissed.
8. Mr Ajay Sharma, learned Senior counsel for the complainant/respondent No.4 submitted that the petitioners failed to adhere to the compromise effected between the parties.
The informant filed an application before the Court seeking an investigation into his FIR. The police investigated the second FIR and filed a charge sheet before the competent Court of law.
This Court in the exercise of its inherent jurisdiction should ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 8 Neutral Citation No. ( 2024:HHC:9338 ) direct that the investigation conducted in the second FIR be treated as the investigation in the earlier FIR.
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9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
10. In T.T. Antony v. State of Kerala, (2001) 6 SCC 181: 2001 SCC (Cri) 1048: 2001 SCC OnLine SC 805the police registered the FIR regarding an incident that occurred on 25.11.1994. The matter was enquired under Section 3(1) of the Commission of Enquiry Act 1952. The Commission submitted a report and another FIR was registered in the matter. The registration of the second FIR was challenged. The Hon'ble Supreme Court held that there can be only one FIR and no subsequent FIR can be registered. It was observed:
"17. Sub-section (1) of Section 154 CrPC contains four mandates for an officer in charge of a police station. The first enjoins that every piece of information relating to the commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 CrPC which provides that immediately on receipt of the information the officer in charge of the ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 9 Neutral Citation No. ( 2024:HHC:9338 ) police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and .
circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by CrPC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom the investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station about that offence.
18. An information given under sub-section (1) of Section 154 CrPC is commonly known as the 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 the 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 offence. 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 vague information by a phone call or a cryptic telegram, the ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 10 Neutral Citation No. ( 2024:HHC:9338 ) 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 CrPC. All other informations made orally or in .
writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC needs to be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she was killed by an unknown person or knowing that W was killed by his mother or sister, H owns up to the responsibility and during the investigation, the truth is detected; it does not require the filing of fresh FIR against H -- the real offender -- who can be arraigned in the report under Section 173(2) or 173(8) CrPC, as the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that the investigation is being directed against the person suspected to be the accused.
19. The scheme of CrPC is that an officer in charge of a police station has to commence an 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 the investigation and the basis of the evidence collected, he ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 11 Neutral Citation No. ( 2024:HHC:9338 ) 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."
11. It was held in Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413: (2008) 2 SCC (Cri) 631: 2008 SCC OnLine SC 882 that the police have a right to carry out further investigation but they cannot carry out fresh investigations. It was observed: --
::: Downloaded on - 30/09/2024 20:32:20 :::CIS 12Neutral Citation No. ( 2024:HHC:9338 ) "7. At this juncture, it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of the investigation under sub-section (2) of Section 173 of the .
Code, the police have the right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223: 1998 SCC (Cri) 1291]. It was, inter alia, observed as follows :
(SCC p. 237, para 24) "24. The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; supplemental'.
'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a 'further' report or reports--and not fresh report or reports-- regarding the 'further' evidence obtained during such investigation."
8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of a fresh investigation, there can be further investigation if required under Section 173(8) of the Code. The same can be done by CB CID as directed by the High Court."
12. Thus, it is impermissible to register the second FIR but the Investigating agency can always take note of the subsequent facts and make them part of the report submitted by them to the Court under Section 173 of the Cr.P.C.
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13. This matter was considered by the Hon'ble Supreme Court in State through Central Bureau of Investigation versus .
Hemendhra Reddy 2023 (7) SCR 134: 2023 SCC OnLine SC 515 and it was held that even if the police have filed the closure report, it is not precluded from conducting further investigation under Section 173(8) of Cr.P.C. The conclusions of the Court were as under:
"54. We sum up our conclusions as follows:--
(i) An order of the Magistrate taking cognizance of offences on a police report is a judicial order.
(ii) An order of a Magistrate ordering a further investigation on receiving a police report is a non-
judicial order.
(iii) An order of a Magistrate accepting a negative police report after hearing the parties is a judicial order.
(iv) An order of a Magistrate recording the report of the police as "undetectable" is not a judicial order.
(v) The power of the Magistrate to permit the police to further investigate the case as provided under Section 173(8) of the Code is an independent power and the exercise of the said power shall not amount to varying, modifying, or cancelling the earlier order of the Magistrate on the report of the police, notwithstanding the fact whether the said earlier order is a judicial order or a non-judicial order of the Magistrate.
(vi) For seeking permission for further investigation under Section 173(8) of Cr.P.C. by the police, the earlier order, either judicial or non-
::: Downloaded on - 30/09/2024 20:32:20 :::CIS 14Neutral Citation No. ( 2024:HHC:9338 ) judicial, passed by the Magistrate on the report of the police need not be challenged before the higher forum.
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(vii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. after cognizance has been taken on the police report can be exercised by the Magistrate only on a request made by the investigating agency and not, at the instance of anyone other than the investigating agency or even suo motu. [vide judgement of the Hon'ble Supreme Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 (2) Scale 198].
(viii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. can be exercised by the Magistrate before accepting the negative police report thereby acting on the protest petition by the victim or the de facto complainant. [vide Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685]
(ix) We clarify that anyone who is aggrieved by any order made by the Magistrate on a police report as aforesaid in sub-paragraphs (i) to (iv) hereinabove may approach the higher forum for remedy, if any."
14. A perusal of FIR No. 371 of 2023 shows that it was registered based on an application filed by the informant before the Court stating that petitioner No.1 is his son and petitioner No.2 is his grandson. They entered the house of the informant on 24.8.2012 at 5.30 PM in village Charatgarh and compelled the informant to transfer his property located at Ludhiana. They also threatened the informant to block his passage by putting a ::: Downloaded on - 30/09/2024 20:32:20 :::CIS 15 Neutral Citation No. ( 2024:HHC:9338 ) wall in front of his house in case of non-transfer of the property.
The informant declined to transfer the property. The petitioners .
abused and beat the informant and his daughter-in-law. They gave beatings to the informant and his daughter-in-law. They damaged the television and other valuable property. Neighbours reached the spot after hearing the cries and the petitioners left the spot. The matter was reported to the police and the police filed a kalandra under Sections 107 and 150 of Cr.P.C.
15. FIR No. 252 of 2014 reads that the informant was present in his house on 24.8.2012, at 5.30 PM. The petitioners entered the house and asked him to transfer the property. They also threatened to block the passage by constructing a wall in front of the informant's house in case of non-transfer of the property. When the informant declined to accept the requests of the petitioners, they gave beatings to him and his daughter-in-
law. They threw the household articles and damaged the television and other articles. The informant and his daughter-
in-law shouted for help, on which the neighbours gathered and the petitioners ran away from the spot. The informant had filed a complaint against the petitioners and the police filed a kalandra under Sections 107 and 151 of Cr.P.C. in the matter.
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16. It is apparent from the perusal of the FIR that these are identical in all respects. They have been registered regarding .
the same incident. Since it is not permissible to register two FIRs regarding the same incident, therefore, the second FIR is to be quashed as per the judgments of the Hon'ble Supreme Court.
17. Mr. Ajay Sharma, learned Senior Counsel for the informant submitted that the police had conducted the investigation in the second FIR and since the two FIRs are identical, the Court should direct that the material collected during the investigation of the second FIR should be considered while deciding the first FIR. This submission cannot be accepted.
The collection of material during the investigation and filing of the charge sheet are the exclusive domains of the Investigating Officer and the Court cannot interfere with the same. It was laid down by the Hon'ble Supreme Court in Devendra Nath Singh v.
State of Bihar, (2023) 1 SCC 48: (2023) 1 SCC (Cri) 270: 2022 SCC OnLine SC 1389 that the investigation is a matter left to the Investigating Agency and the Court cannot direct the Investigating Agency to investigate the matter in a particular manner in exercise of its inherent power. It was observed at page 76:
::: Downloaded on - 30/09/2024 20:32:20 :::CIS 17Neutral Citation No. ( 2024:HHC:9338 ) "45.5. The powers under Section 482CrPC are not unlimited or untrammelled and are essentially for the purpose of real and substantial justice. While exercising such powers, the High Court cannot issue directions so as .
to be impinging upon the power and jurisdiction of other authorities. For example, the High Court cannot issue directions to the State to take advice of the State Public Prosecutor as to under what provision of law a person is to be charged and tried when ordering further investigation or reinvestigation; and it cannot issue directions to investigate the case only from a particular angle. In the exercise of such inherent powers in extraordinary circumstances, the High Court cannot specifically direct that as a result of further investigation or reinvestigation, a particular person has to be prosecuted."
18. Therefore, the Court cannot issue a direction to the Investigating Officer to investigate the matter in a particular manner. Further, no provision of law or any precedent was brought to the notice of this Court which would permit the adoption of such a course. Hence, the prayer of Mr. Ajay Sharma, learned Senior Counsel cannot be accepted.
19. In view of the above, the present petition is allowed and FIR No. 252 of 2014, dated 25.8.2014, registered at Police Station, Una Sadar, District Una, H.P. for the commission of offences punishable under Sections 186, 323, 427, 451, 506 and 511 read with Section 34 of IPC and consequential proceedings arising out of the same are ordered to be quashed.
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20. Needless to say that this will not have any effect on the earlier FIR and the prosecution will be entitled to proceed .
with the same as per law.
21. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.
22. The present petition stands disposed of and so are the pending miscellaneous applications, if any.
(Rakesh Kainthla) Judge 30th September 2024 (Chander) ::: Downloaded on - 30/09/2024 20:32:20 :::CIS