Jharkhand High Court
Tapan Kumar Mandal vs The State Of Jharkhand on 4 February, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1922 of 2012
Tapan Kumar Mandal, Son of Sri Madhusudan Mandal, Vill.
Dhatkidih, P.O. Burudih, P.S. Saraikela, District- Saraikela
Kharsawan ... ... Petitioner
Versus
1. The State of Jharkhand
2. Bhola Nath Laguri,
S/o Shri Shyam Lal Laguri,
Circle Officer, Kharsawan, P.O. & P.S. Kharsawan, Dist- Saraikela
... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Vikram Sinha, Advocate For the Opp. Party- State : Mr. Tapas Roy, Advocate
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Through Video Conferencing
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14/04.02.2022 Heard Mr. Vikram Sinha, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Tapas Roy, learned counsel appearing on behalf of the opposite party- State.
3. This petition has been filed for quashing of the First Information Report being Kharsawan P.S. Case No. 38 of 2011, corresponding to G.R. Case No. 554 of 2011, the subsequent charge- sheet and the entire criminal proceedings arising out of the said case. The First Information Report was registered for offence under Section 147/148/149/353/332/335/307/324/326 of Indian Penal Code against unknown and now the same is said to be pending in the court of ACJM at Saraikela.
Arguments of the petitioner
4. The crux of the argument of the learned counsel for the petitioner is that earlier on the same set of facts, an F.I.R. bearing Kharsawan P.S. Case No. 37 of 2011 was registered on 18.07.2011 against the petitioner and 19 other accused persons for offence punishable under Sections 147/148/149/447/307/379/427/323/324 of the Indian Penal Code and also added section 411 of Indian Penal Code and the informant of the said case was manager, personnel and Industrial Relations of Abhijeet Group of Companies. He submits that in the said First Information Report being Kharsawan P.S. Case No. 37 of 2011, charge-sheet was submitted on 17.09.2011 and although 2 the petitioner was named in the first information report, but ultimately charge-sheet was not submitted against the petitioner. However, it is not in dispute that further investigation in connection with Kharsawan P.S. Case No. 37 of 2011 is still pending but it is submitted by the learned counsel for the petitioner that the investigation is not pending as against the petitioner.
5. The learned counsel submits that the allegation and content of the first information report being Kharsawan P.S. Case No. 37 of 2011 is similar to that of the present case i.e. Kharsawan P.S. Case No. 38 of 2011 although the informant of both the first information reports are different, but both the first information reports are related to one and the same occurrence which took place on the same date. He submits that on the one hand, in the first FIR the petitioner has not been charge-sheeted, but the same investigating agency after investigating the subsequent FIR submitted a charge-sheet against the petitioner even though the case was registered against unknown.
6. The learned counsel submits that the law is well-settled that on the same set of facts, two First Information Reports cannot be instituted and all the subsequent information is to be treated as statement under Section 162 of Code of Criminal Procedure and institution of 2nd First Information Report on the same set of facts and incidence i.e Kharsawan P.S. Case No. 38 of 2011, is not permissible and accordingly, the same is fit to be set -aside and the entire criminal proceedings be set-aside.
7. The learned counsel for the petitioner has relied upon the judgement passed in the case of "T.T. Antony Vs. State of Kerala and Others" reported in (2001) 6 SCC 181 and has referred to paragraphs 17 to 20 of the said report. He has also relied upon another judgement reported in (2010) 12 SCC 254 (Babubhai Vs. State of Gujarat and Others), paragraphs 20 to 23. The learned counsel submits that in view of the aforesaid judicial pronouncements, the present petition be allowed.
Arguments of the opposite party
8. The learned counsel appearing on behalf of the opposite party- State, on the other hand, has opposed the prayer and has submitted that the allegations in the two First Information Reports are different 3 and also relate to different point of time. So far as the first F.I.R. is concerned, it was filed by the officer of the company for the incident relating to earlier point of time, alleging gathering of crowd and their illegal acts in the company premises and also assaulting of the officers and staffs of the company and looting away the property of the company. So far as the subsequent FIR which is involved in the present case is concerned, upon receipt of information about gathering of crowd, one S.D.O. was appointed who reached at the place of occurrence and upon seeing the situation the crowd was declared to be illegal. It has been alleged in the 2nd First Information Report that in spite of giving warning to the crowd and asking to disperse, the crowd became violent and attacked the police personnel in which some of them were injured. The learned counsel submits that it cannot be said that both the first information reports have the same set of allegations and are relating to the same incident. The learned counsel submits that in such circumstances, the present petition is fit to be dismissed and the judgements cited by the learned counsel for the petitioner do not help the petitioner in any manner, rather they are in favour of the opposite party.
Findings of this Court
9. In order to decide the point raised by the petitioner regarding legality and validity of the 2nd First Information Report, this Court finds that the issue has been considered by the Hon'ble Supreme Court and law in this regard has been laid down in a number of judicial pronouncements including the aforesaid two judgements relied upon by the learned counsel appearing on behalf of the petitioner i.e., the case of T.T. Antony (supra) and Babubhai (supra). The aforesaid two judgments also deal with the earlier decisions dealing with the aforesaid issue.
10. In the case of Ram Lal Narang Vs. State (Delhi Administration) reported in (1979) 2 SCC 322, the Hon'ble Supreme Court considered the legality and validity of 2nd First Information Report with particular reference to allegation of conspiracy and held in para 11 as under:
"11...........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 4 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 FIR RC 4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known."
The Hon'ble Supreme Court after laying down the aforesaid law and considering the facts of the said case dismissed the appeal filed by Ram Lal Narang challenging institution of the 2nd FIR. Thus, it was held that when 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 and in such a case the 2nd FIR would be maintainable.
11. In the judgement passed by the Hon'ble Supreme Court in the case of T.T. Antony (supra), the Hon'ble Supreme Court considered the scheme of the Cr.P.C in connection with registration of F.I.R and one of the points for determination was whether the registration of fresh case on the basis of letter of D.G.P which was in the nature of 2nd F.I.R under Section 154 Cr.P.C was valid and it could form the basis of a fresh investigation. This point along with analogous point has been considered right from para 16 onwards. The Hon'ble Supreme Court considered the previous decisions on the point and in para 28 found that a comparison and critical examination of the two F.I.Rs of the case disclosed that the date and place of occurrence are same; there is alluding reference to the deaths caused due to police firing in the first F.I.R; the narration of events were almost the same and the additional averment in the subsequent F.I.R were based on the 5 findings in the report of one commission under Commission of Enquiry Act, 1952.
The Hon'ble Supreme Court considered the test laid down in the case of Ram Lal Narang Vs. State ( Delhi Administration) (supra) and found that in truth and substance, the essence of offence in both the F.I.Rs were same and was of the view that in sending information in regard to the same incident by enclosing a copy of the report of the Commission of inquiry and registering the 2nd F.I.R on the basis of such report was irregular and fresh investigation by the investigating agency was unwarranted and illegal. The Hon'ble Supreme Court also observed that the investigation in the 1st F.I.R was pending and the correct course of action should have been to take note of findings and contents of the report, streamline the investigation to ascertain the true and correct facts, collect the evidence in support of thereof, form an opinion under Section 169 and 170 Cr.P.C, as the case may be, and forward the report/reports under Section 173 (2) or Section 173 (8) Cr.P.C. to the Magistrate concerned. In view of the aforesaid findings, the Hon'ble Supreme Court quashed the 2nd F.I.R leaving it open to the investigation agency to seek permission in the earlier F.I.R of the Magistrate to make further investigation, forward further report or reports and proceed in accordance with law.
Thus, institution of 2nd FIR on additional material of the enquiry report under Commission of Enquiry Act, 1952 was held to be illegal under the facts and circumstances of the case.
12. In the case of T.T. Antony (supra), the Hon'ble Supreme Court again examined the entire scheme of the Cr.P.C regarding institution of F.I.R and submission of final report in a criminal case. The Hon'ble Supreme Court reiterated the law that there can be no 2nd F.I.R and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same congnizable offence or the same occurrence or incident giving rise to one or more cognizanble offence. The Hon'ble Supreme Court further held that once an F.I.R has been instituted, all other information made orally or in writing after commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the F.I.R and entered in the station house diary by the police or such cognizable 6 offences as may come to his notice during investigation will be statements falling under Section 162 Cr.P.C and no such information / statement can properly be treated as F.I.R and entered in the station diary as it would in effect be a 2nd F.I.R and the same cannot be in conformity with the scheme of Cr.P.C. Para 20 of the aforesaid judgment is quoted as under:
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."
13. In the case of Babubhai (supra), the Hon'ble Supreme Court considered the point regarding filing of two F.I.Rs. and also considered the case of Ram Lal Narang (supra) in para 13 as follows:
"13. In Ram Lal Narang v. State (Delhi Admn.) this Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of conspiracy in both the cases was not the same. This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible."
14. The Hon'ble Supreme Court in the case of Babubhai (supra) in para 20 to 23 held as follows and laid down the test of sameness:
7"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.
22. The instant case is required to be examined in the light of the aforesaid settled legal propositions.
23. If the two FIRs are read together, it becomes clear that the incident started in the morning as per both the FIRs CR No. I- 154 of 2008, lodged by Mr M.N. Pandya, Sub-Inspector of Police, stated that he reached the place of occurrence after receiving the information from the police station and found that the mob had already dispersed. The case of the prosecution is that when the police reached the place of occurrence of the first incident, the mob had already dispersed, could not be correct for the reason that some of the witnesses have stated that the clash was going on when the police arrived and police resorted to force to disperse the mob. In fact, it was the police who summoned the ambulances which took the injured persons to hospitals."
15. The Hon'ble Supreme Court in the case of Amitbhai AnilChandra Sah Vs. C.B.I. reported in (2013) 6 SCC 348 was of the view that the law laid down in the case of T.T. Antony (supra) that a 2nd F.I.R (which is not a cross case) in respect of offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution of India 8 and the said principle laid down in the case of T.T. Antony has never been diluted in any subsequent judicial pronouncements even while carving out exceptions. The Hon'ble Supreme Court in para 38 and 40 held that to determine as to whether different offences ought to be treated as part of the same transaction, the "consequence test" laid down in the case of C. Muniappan reported in (2010) 9 SCC 567, may be taken aid of. The Hon'ble Supreme Court was of the view that the said test prescribes that if an offence forming part of the 2nd FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the 2nd FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the 1st FIR. Furthermore, merely because two separate complaints had been lodged, the same did not mean that they could not be clubbed together and one charge-sheet could not be filed. The Hon'ble Supreme Court further at para 56 held that if two FIRs pertain to two different incidents/crimes, a 2nd F.I.R. is permissible, which was not the situation before the Hon'ble Supreme Court. The Hon'ble Supreme Court also held that a 2nd F.I.R. would lie in the event for e.g. when pursuant to the investigation in the 1st FIR, a larger conspiracy is disclosed, which was not part of the 1st FIR, which was not the situation before the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Amitbhai AnilChandra Sah Vs. C.B.I. (surpa) was of the view that in the said case, the 2 nd F.I.R was nothing but a consequence of events which had taken place earlier and accordingly quashed the 2nd FIR.
16. After going through the 1st F.I.R. of Kharsawan P.S. Case No. 37 of 2011, this Court finds that the said case was lodged by the Manager of the company mentioning that one man was caught by the villagers along with two children of 3 to 4 years of age and the villagers were agitating that both the children were brought in the company for sacrificing them for the company. When the informant of the said case rushed to the spot and tried to pacify the crowd and asked them not to create violence, the local labourers who were present at the site also rushed towards the spot and within no time, the number of persons in the crowd increased to around five hundred and 9 they were all out of control. Subsequently, when he reached near the Simplex office, the crowd was around 1200 to 1500 and was totally out of control. The crowd started ransacking simplex office and were locking people in the rooms. He was caught by one person namely Shashank Pati who attacked him on his face and he was thrown on the ground and kicked and beaten up. When he was trying to save himself, at that point of time one of them lifted the bolder to crush his head, but fortunately he escaped. Then the mob started beating everyone who came across and people started running helter-skelter to save their life. Within no time, the crowd armed with sword, iron rods, sticks etc. started looting everything and after damaging and destroying the total project office, they proceeded towards the hostel building and dragged the residents of the hostel and started beating them. They also looted the valuable articles like LCDs, TVs, Laptops, cloths etc. and this whole incident continued for about four hours. The F.I.R. also contained the list of injured persons and persons involved and identified in mobilizing and instigating the attacking of employees of the company as well as the list of looted items.
17. So far as the 2nd F.I.R. being Kharsawan P.S. Case No. 38 of 2011 is concerned, the same has been registered on the basis of written report of the circle officer of Kharsawan. It has been stated that the informant received telephonic information from S.D.O. Saraikela that on the rumour two children had been sacrificed at Abhijeet Group of Company campus, the villagers had turned violent and were destroying the property of the company. The informant was deputed as Magistrate in the Abhijeet Group of Companies campus and when the informant reached the company campus he saw approximately 1800 to 2000 unknown villagers armed with weapons and were destroying and looting the property of the company and were also assaulting the employees of the company. Till this stage the 1st and the 2nd F.I.R.s are overlapping. However, there is further narration of events and further allegations in the 2nd F.I.R. when the informant of the 2nd F.I.R. i.e. the magistrate arrived at the spot. It has been stated that he tried to pacify the crowd, but all was in vain and consequently, he declared the mob as illegal. The police personnel were used to disperse the crowed, but it had no effect and the crowd continued with its unruly behaviour.
10A few stones were also pelted at the police which resulted in injuries to the police personnel. The officer in-charge of the Kharsawan Police Station also sustained serious injuries on his face. Thereafter, the police personnel were given order to make round of firing to disperse the crowd.
18. Upon going through both the first information reports, this Court finds that the 1st F.I.R. was instituted and limited with respect to the incident which had taken place prior to arrival of the police personnel, Magistrate and the circle officer on the spot and the 2nd F.I.R., though overlapping to some extent while narrating the background under which the police personnel, Magistrate and other officials arrived at the spot and saw the unruly behaviour of the crowd against the company personnel and company property, but it incorporates further and subsequent cognizable office committed by the persons present in the crowd. It further depicts the incidents which took place when the police and officials made attempt to control the situation and had to declare the crowd illegal. Thereafter, the crowd attacked the police personnel and the officers who got injured and firing was resorted to disperse the crowd.
19. Considering the narration in the two F.I.Rs., this Court is of the considered view that although both the incidents are in continuity to one another, but they are relating to different point of time and narrating different cognizable offences. While applying the test of "sameness" as laid down in the aforesaid judgements particularly in para 21 of the judgement reported in the case of Babubhai Vs. State of Gujarat and Others (Supra), this Court finds that both the F.I.Rs. neither relate to the same incident in respect of the same occurrence nor are in regard to the incidents which are two or more parts of the same transaction although the narration in the 1st F.I.R. and initial narration in the 2nd F.I.R. are overlapping to some extent only; the 2nd F.I.R. depicts other cognizable offences which do not form part of the 1st F.I.R. and some of the cognizable offence as mentioned in 1st F.I.R. is not mentioned in 2nd F.I.R. e.g. specific incident of beating up of the informant of the 1st F.I.R. The 2nd F.I.R. covers a much wider canvass covering subsequent cognizable offences qua to police personnel and 11 the government officials which had taken place in later point of time and had no whisper or even indication in the 1st F.I.R.
20. Considering the aforesaid ratio as laid down by the Hon'ble Supreme Court and applying the test of sameness as above, this Court finds that the 2nd F.I.R. cannot be said to be same as the 1st F.I.R. in the facts and circumstances of the present case.
21. As a cumulative effect of the aforesaid findings, this Court is not inclined to quash the 2nd F.I.R. as prayed for by the petitioner. This criminal miscellaneous petition is accordingly dismissed.
22. Interim order, if any, stands vacated.
23. Pending interlocutory application, if any, is closed.
24. Let a copy of this order be communicated to the learned court below through 'FAX/email'.
(Anubha Rawat Choudhary, J.) Pankaj