Andhra Pradesh High Court - Amravati
J C Uma Reddy vs .The State Of Andhra Pradesh, on 8 February, 2021
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT.JUSTICE KONGARA VIJAYA LAKSHMI
Writ Petition No.11709 of 2020
ORDER:-
1. This writ petition is filed 'to declare the action of the respondents
- police officers in registering separate-separate crimes for same and similar allegations as forming part of Cr.No.33 of 2020, as illegal and arbitrary and consequential direction is sought to the 7th respondent to take up the investigation of all the crime numbers namely Cr.Nos.28, 73, 74, 85, 86, 87, 268, 269, 270, 271 and 272 of 2020 of Anantapuramu I Town PS, Cr.Nos.28, 85, 86, 87, 90, 91, 92,99, 100,101, 104, 105, 106, 111, 112, 113, 530, 542, 543, 544, 545, 547, 548 and 549 of 2020 of Tadipatri Town PS, Cr.No.96 and 97 of 2020 of Tadipatri Rural PS, Cr. No.187 of 2020 of Peddapappur PS, Cr.No.49, 50 and 51 of 2020 of Orvakal PS of Kurnool District and submit a final report in terms of Section 173 of Cr.P.C. before the jurisdictional Court.'
2. Heard Sri Vedula Venkata Ramana, learned senior counsel for the petitioners and the learned Advocate General, appearing for the official respondents. With the consent of both the counsel the Writ Petition is being disposed of at the admission stage.
3. Case of the petitioners, in brief is that -
(a) They were falsely implicated as accused in Cr.No.33 of 2020 dated 08.02.2020 for the alleged offences under Sections 420, 467, 471, 120-B and Section 34 of IPC and in similar crimes by the respondents 7 to 10 who are the complainants.
(b) The allegations in those crimes are that M/s Ashok Leyland, who is a manufacturer of heavy trucks, sold scrap (Bharat Stage III) trucks to two entities, namely M/s Jatadhara Industries and C.Gopal Reddy & Company 2 KVL, J WP No.11709 of 2020 and these trucks were registered before the Regional Transport Authority, State of Nagalanad and were subsequently, re-registered before the Regional Transport Authority, Ananthapuramu. Subsequently, the 7th respondent i.e., the Deputy Transport Commissioner gave a complaint stating that the said registration process is illegal and a case in Cr.No.33 of 2020 was registered; similar/same complaints were given by respondents 8 to 11 in respect of certain other trucks.
(c) As per the law laid down by the Hon'ble Supreme Court in 'T.T.Antony vs. State of Kerala1', which is reiterated and reaffirmed in 'Amitbhai Anilchandra Shah vs. Central Bureau of Investigation2', when a particular FIR is registered and is under investigation, there cannot be registration of analogous/similar complaints and in other words, there can be only one FIR and all subsequent information is liable to be tagged on to the same FIR and the accused cannot be burdened with multiple investigation process; the relief sought in the present writ petition is restricted to clubbing of all the same or similar FIRs with the first one i.e., Cr.No.33 of 2020 and that a single investigation shall be proceeded with.
4. Counter-affidavit is filed by the 1st respondent, on behalf of respondents 1 to 6, stating inter-alia that:
(a) Each case is having different and distinct cause of action like creating fake documents, fake insurance policies, changing the chassis, converting as buses and running them as stage carriers and hence clubbing of the cases is not possible; that the investigation has to be done at different places; in one case, 9th respondent is the complainant which is filed against the 2nd petitioner.
(b) Investigation disclosed that, BS-III vehicles were purchased from M/s Ashok Leyland Company in the States of Tamilnadu, Uttarakhand and 1 (2001) 6 SCC 181 2 (2013) 6 SCC 348 3 KVL, J WP No.11709 of 2020 other States as scrap and by showing them as BS-IV vehicles, got them registered in the State of Nagaland.
(c) Changes were made to some of the vehicles and showed them as road worthy buses by manipulating the records.
(d) They created fake insurance policies.
(e) The staff of Ashok Leyland Company have to be examined in the State's of Uttarakhand and Tamil Nadu.
(f) 41 cases were registered against the petitioners at various police stations in Ananthapuramu and Kurnool Districts.
(g) The ratio laid down by the Hon'ble Supreme Court in the decisions referred to by the petitioners has no application to the facts of the case.
(h) These cases relate to different and distinct occurrences spread over a period of time, at different places and there is no commonality in the offences as each incident of registration of a particular vehicle with a fraudulent act, is at a different place.
(i) Petitioners cannot take a plea that different FIRs are being registered for the same and similar allegations which form part of Cr.No.33 of 2020 of Ananthapuramu I Town PS.
5. Reply affidavit has been filed by the petitioners to the counter- affidavit filed by respondents 1 to 6, stating inter-alia that:
(a) Multiple FIRs are registered on the complaint of the same person, by name N. Siva Prasad, Deputy Transport Commissioner, with the same allegations, as they belong to anti-ruling party.
(b) Subsequent information may be treated as supplementary information to the first FIR.
(c) First FIR was registered as Cr.No.28 of 2020 on 02.02.2020 with Ananthapuramu I Town PS, as against the 1st petitioner alone, without any whisper against petitioners 2 and 3; subsequently Cr.No.33 of 2020 was 4 KVL, J WP No.11709 of 2020 registered on 08.02.2020 by the same police station against petitioners 2 and 3, and they were arrested and sent to judicial custody, though the 2nd petitioner is not at all concerned with any of the business entities; two days prior to effecting arrest in Cr.No.33 of 2020, one case was registered on 11.06.2020 and on the very next day i.e., on 12.06.2020, another set of four cases were registered; while petitioners 2 and 3 are in judicial custody, another set of four cases were registered on 15.06.2020 with Tadipatri Town PS, wherein the names of the petitioners 2 and 3 were not shown; on 16.06.2020 while petitioners are in judicial custody, another set of three cases were registered with Tadipatri Town PS, showing the names of other persons as accused; on the same day, a case was registered with Pedapappur PS, wherein also, there is no whisper about the involvement of petitioners 2 and 3; in all these cases the allegation being one and the same, which arose from the same cause of action, as per the law laid down by the Hon'ble Supreme Court in 'Surender Kaushik vs. State of U.P.,3', 'Upkar Singh vs. Ved Prakash4', in Anju Chaudhary vs. State of Uttar Pradesh5' and in 'Prem Chand Singh vs. State of UP6', more than one FIR cannot be registered.
6. When the matter came up for admission on 20.07.2020, respondents were directed not to take any coercive steps against the petitioners and thereafter the said order was extended until further orders.
7. Sri Vedula Venkata Ramana, learned senior counsel appearing for the Advocates on record submits that in the facts and circumstances of the case, second FIR is not maintainable in law. Information, which is received subsequent to the registration of FIR, has to be treated as supplementary information and the registration of the second FIR amounts to double 3 (2013) 5 SCC 148, 4 (2004) 13 SCC 292 5 (2013) 6 SCC 384 6 (2020) 3 SCC 54 5 KVL, J WP No.11709 of 2020 jeopardy, which is prohibited under Article 20(2) of the Constitution of India and contrary to Section 300 of Cr.P.C. He further submits that FIR No.28 of 2020 is not the subject matter of the present writ petition. The allegations against the petitioners are same/similar in all the cases and only vehicle number is different.
8. Learned Advocate-General appearing for the official respondents submits that different FIRs are registered for different offences against different people for the different roles played by them; what is forged in one case is not the same as in the other, the modus operandi and the beneficiaries are different and the registration of the vehicles is done at different police station jurisdictions; Criminal Procedure Code does not bar the registration of second FIR, if the offence is different and distinct. He further submits that Article 20 of the Constitution of India and Section 300 of Criminal Procedure Code do not apply to the facts of the present case as in the present case, petitioners are not yet prosecuted and punished; some offences are under Motor Vehicle Act and each time, a vehicle is registered and re-registered, it is distinct and different from the earlier one, and that there are some more accused persons in the mentioned crimes, whose details are not given in the counter affidavit.
9. The admitted factual aspects with regard to registration of FIRs in various police stations are as follows.
(i) Details of cases registered within the limits of Ananthapuramu I Town police Station -
(a) Cr.No.33 of 2020 was registered for the offences under Sections 420, 467, 471, 120-B read with 34 of IPC and Sections 179 (2), 182-A, 190 (2) of the Motor Vehicles Act, alleging registration of 68 vehicles in the State of Nagaland, which were purchased as scrap and registering them as BS-IV vehicles in favour of M/s C Gopal Reddy & Company and M/s 6 KVL, J WP No.11709 of 2020 Jatadhara Industries Pvt. Limited and again getting them re-registered before the R.T.O., Ananthapuramu;
(b) FIR No.73 of 2020 was also registered under the same sections with regard to registration of 23 vehicles.
(c) FIR No.74 of 2020 was registered under the same sections with regard to three vehicles, which were purchased in favour of M/s Jatadhara Industries Pvt. Limited, getting them registered in favour of one A.Nageswara Reddy, in the State of Nagaland by changing the maker's classification as buses and getting them re-registered before RTA, Ananthapuramu.
(d) FIR No.85 of 2020 was registered under the same section with regard to registration of one vehicle, in favour of M/s. Jatadhara Industries in the State of Nagaland and re-registration in the name of Gandikota Mohammed Haneef by manipulating records and by uploading fake and fabricated documents.
(e) FIR No.86 of 2020 was registered under the same sections, with regard to registration of one vehicle, in favour of C. Gopal Reddy and Company in the State of Nagaland and re-registration in favour of one Naguladinne Mahaboob Vali by manipulating records and by uploading fake and fabricated documents.
(f) FIR No.87 of 2020 was registered under the same sections pertaining to registration of one vehicle in favour of C. Gopal Reddy and Company in the State of Nagaland and re-registration in favour of one K. Prathap by manipulating records and uploading fake and fabricated documents.
(g) FIR No.268 of 2020 was registered under Sections 420, 467, 471 read with 34 of IPC, wherein the allegation is creation and submission of fake insurance policy with regard to vehicle bearing No.NL 01 AC 1075, 7 KVL, J WP No.11709 of 2020 which is re-registered as the vehicle bearing No.AP 02 TH 3294 at RTA, Ananthapuramu.
(h) Cr.No.269 of 2020 was registered under Sections 420, 467, 471 read with 34 of IPC with regard to creation and submission of fake insurance policy, pertaining to vehicle bearing No.NL 01 AC 3648, which was re- registered as AP 02 TH 3857 at RTA, Ananthapuramu.
(i) Cr.No.270 of 2020 was registered under Sections 420, 467, 471 read with 34 of IPC pertaining to vehicle bearing No.NL 01 AC 3650, registered in Kohima, State of Nagaland and was re-registered as AP 02 TH 4238 before the RTA, Ananthapuramu.
(j) Cr.No.271 of 2020 was registered under Sections 420, 467, 471 read with 34 of IPC which also pertains to creation and submission of fake insurance policy, pertaining to vehicle baring No.NL 01 AC 3658, which was re-registered as AP 02 TH 3658 before the RTA, Ananthapuramu.
(k) Cr.No.272 of 2020 was registered under Sections 420, 467, 471 read with 34 of IPC for creating and submitting fake insurance policy pertaining to the vehicle bearing No.NL 01 AC 3659, which was re-registered as AP 02 TH 3657 before the RTA, Ananthapuramu. All the above cases were registered under the limits of Ananthapuramu I Town PS.
(ii) Details of the cases registered within the limits of Tadipatri Town Police Station.
(a) Cr.No.85 of 2020 was registered under Sections 420, 467, 468, 471, 120-B read with 34 of IPC and Sections 179, 182 and 190 of the Motor Vehicles Act, pertaining to one vehicle, which was purchased as scrap and registered at the State of Nagaland in favour of M/s C. Gopal Reddy and Co. and getting it re-registered in the name of A.Nageswar Reddy (9th respondent) by manipulating records and uploading fake and fabricated documents.
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KVL, J WP No.11709 of 2020
(b) Cr.No.86 of 2020 was registered under the same sections as above pertaining to a single vehicle, which was purchased as scrap and registered in favour of M/s C. Gopal Reddy and Company and getting it re-registered in the name of Gutha Somasekhar by manipulating records and uploading fake and fabricated documents.
(c) Cr.Nos.87, 92, 99, 100 and 112 of 2020 were registered under the same sections for one vehicle each, which were purchased as scrap, registered in favour of M/s C. Gopal Reddy and Company and getting them re-registered in the name of A. Nageswara Reddy (9th respondent) by manipulating records and uploading fake and fabricated documents.
(d) Cr.No.90 of 2020 was registered under the same sections for one vehicle, which was purchased as scrap and registered in favour of M/s C.Gopal Reddy & Company and getting it re-registered in the name of Naguladinne Mahaboob Vali by manipulating records and uploading fake and fabricated documents.
(e) Cr.Nos.91 and 101 of 2020 were registered under the same sections for one vehicle each, which were purchased as scrap and registered in favour of M/s C.Gopal Reddy & Company and getting them re-registered in the name of one Akula Ramesh by manipulating records and uploading fake and fabricated documents.
(f) Cr.Nos.104 and 105 of 2020 were registered under the same sections, pertaining to one vehicle each, which were purchased as scrap and registered in favour of M/s C.Gopal Reddy & Company and getting them re-registered in the name of Mohd. Haneef by manipulating records and uploading fake and fabricated documents.
(g) Cr.No.111 of 2020 was registered under the same sections pertaining to one vehicle, which was purchased in favour of M/s Gopal Reddy & Company as scrap and getting it re-registered in the name of 9 KVL, J WP No.11709 of 2020 N.Mahaboob Vali, by manipulating records and uploading fake and fabricated documents.
(h) Cr.No.113 of 2020 was registered under the same sections pertaining to one vehicle, which was purchased in favour of M/s Gopal Reddy & Company as scrap and getting it re-registered in the name of Shaik Mahaboob Peera, by manipulating records and uploading fake and fabricated documents.
(i) Cr.No.530 of 2020 was registered under the same sections basing on the complaint of 9th respondent stating that basing on the instructions of the 2nd petitioner, they manipulated all records and sold the vehicles and cheated the public.
(j) Cr.No.542 of 2020 was registered under the same sections pertaining to one vehicle which was purchased in favour of M/s Gopal Reddy & Company as scrap and getting it re-registered in the name of K Pratap, by manipulating records and uploading fake and fabricated documents.
(k) Cr.No.543 of 2020 was registered under the same sections pertaining to one vehicle which was purchased in favour of M/s Gopal Reddy & Company as scrap and getting it re-registered in the name of G.Somasekhar, by manipulating records and uploading fake and fabricated documents.
(l) Cr.No.545 of 2020 is pertaining to registration of 64 vehicles, though they purchased the same as scrap, registered in the State of Nagaland by falsely mentioning as BS-IV vehicles in the name of M/s C Gopal Reddy & Company and M/s Jatadhara Industries Pvt. Ltd. and getting them re-registered before RTA, Ananthapuramu.
(m) Cr.Nos.547, 548 and 549 of 2020 were registered under the same sections, pertaining to each vehicle registered in the name of M/s Gopal Reddy & Company and getting them re-registered in favour of Gopal Reddy, 10 KVL, J WP No.11709 of 2020 K.Nagaraju and B. Ravikumar respectively, by manipulating records and by uploading fake and fabricated documents.
(iii) Details of cases registered within the limits of Tadipatri Rural Police Station.
(a) Cr.No.96 of 2020 was registered under Sections 420, 467, 468, 471, 120(b) read with 34 of IPC and Sections 179, 182 and 190 of Motor Vehicles Act, pertaining to one vehicle, purchased as scrap, registered in favour of M/s C.Gopal Reddy & Company and getting it re-registered in favour of one P.Sekhar Reddy, by manipulating records and by uploading fake and fabricated documents.
(b) Cr.No.97 of 2020 was registered under the same sections pertaining to one vehicle, purchased as scrap, registered in favour of M/s C.Gopal Reddy & Company and getting it re-registered in favour of one S. Ramanjineyulu, by manipulating records and by uploading fake and fabricated documents.
(iv) Details of the case registered within the limits of Pedda Pappur PS. Cr.No.187 of 2020 was registered under Sections 420, 467, 468, 471, 120(b) read with 34 of IPC and Sections 179, 182 and 190 of Motor Vehicles Act, pertaining to one vehicle, purchased as scrap, registered in favour of M/s C.Gopal Reddy & Company and getting it re-registered in favour of one Somasekhar, by manipulating records and by uploading fake and fabricated documents.
(v) Details of the cases registered within the limits of Orvakal PS, Kurnool District.
Cr.Nos.49, 50 and 51 of 2020 were registered under Sections 420, 467, 468, 471, 120(b) read with 34 of IPC and Sections 179 (2), 182(A), 182 (A)(4) and 190(2) of the Motor Vehicles Act, pertaining to registration of one 11 KVL, J WP No.11709 of 2020 vehicle each purchased as scrap in favour of M/s C.Gopal Reddy & Company and getting them re-registered in the name of Mattam Chinna Naganna (A.3), which were later transferred in favour of M/s G.Gopal Reddy & Company, represented by Chavva Mounika (A.4), by manipulating records and uploading fake and fabricated documents.
10. As seen from the counter-affidavit, cases are registered at various police stations in Ananthapuramu and Kurnool Districts. The main allegation in most of these cases is that the accused purchased BS-III vehicles from M/s Ashok Leyland, as scrap, created fake documents showing them as BS-IV vehicles got them registered at State of Nagaland and thereafter, got them re-registered in Andhra Pradesh. But in each of these cases, there is an allegation that documents pertaining to a particular vehicle were forged and fake documents were created. The persons in whose names, these vehicles were re-registered are not the same in all the cases. Some of the cases pertain to creation and submission of fake insurance policies. In some cases, 9th respondent is the complainant. Even though some of the vehicles were registered in his name, dates of commission of alleged offences, vehicles involved, documents forged, accused and the persons to whom the vehicles were transferred ultimately were also different. The complainants are also different in some of the cases. The officials of M/s Ashok Leyland, from whom subject vehicles were purchased, are also different. It is stated in the counter-affidavit that the officials of M/s Ashok Leyland of Uttarakhand and Tamil Naidu States have to be confronted with the documents.
11. Gist of the contents of the FIRs is filed in the counter-affidavit and copies of some of the FIRs are filed before this Court. In the light of the above factual background, whether the action of the respondents in registering separate crimes is contrary to various judicial pronouncements 12 KVL, J WP No.11709 of 2020 or not has to be examined basing on the ratio laid down in the judgments referred to by both the counsel.
12. Sri Vedula Venkata Ramana, learned senior counsel, relied upon the judgment of the Hon'ble Supreme Court in Amitbhai Anilchandra Shah's case (2 supra), for the proposition that, no second FIR shall be filed and no fresh investigation shall be done on receipt of every subsequent information in respect of same cognizable offence.
13. The facts of the said case are that, one Amitbhai Anilchandra Shah filed writ petition under Article 32 of the Constitution of India challenging filing of fresh FIR dated 29.04.2011 by the Central Bureau of Investigation (CBI) and charge sheet dated 04.09.2012 arraying him as an accused. The fresh FIR was pursuant to the directions given by the Hon'ble Supreme Court to the Police Authorities of the Gujarat State to handover the case relating to the death of Tulsiram Prajapati, a material witness to the killings of Sohrabuddin and his wife Kausarbi to the CBI, in Narmada Bai vs. Sate of Gujarath [(2011) 5 SCC 79], wherein, the Hon'ble Supreme Court rejected the investigation conducted/concluded by the State Police and directed to handover the case to CBI and after investigation, the CBI registered fresh FIR in 2011. Aggrieved by the action of CBI in registering fresh FIR, the said writ petition was filed alleging that it is violative of his fundamental rights. The prayer in the said writ petition is for quashing of second FIR and the charge sheet. In the said case, it was contended on behalf of the petitioner before the Hon'ble Supreme Court, that the said prayer is based upon CBI's own finding that the offence covered by the second FIR is part of the same conspiracy and culminated into the same series of acts forming part of the same transaction, in which the offence alleged in the first FIR was committed. It was also pointed out therein that, it is the case of the CBI itself before the Hon'ble Supreme Court that even 13 KVL, J WP No.11709 of 2020 the charges will have to be framed jointly and one trial will have to be held as contemplated under Section 220 of Cr.P.C.; it was further pointed out that as per CBI, the alleged criminal conspiracy commenced when Sohrabuddin and Kausarbi (whose deaths were in question in the first FIR) and Tulsiram Prajapati (whose death was in question in the second FIR) were abducted from Hyderabad after which Sohrabuddin was allegedly killed in the year 2005 and Kausarbi and Tulsiram Prajapati were killed thereafter; it was also highlighted that the competent jurisdictional court has already taken cognizance of all the three alleged killings in the charge sheet filed by the CBI in the first FIR itself. Before the Hon'ble Supreme Court, the case of the CBI is that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are distinct offences arising out of separate conspiracies though inter- connected with each other. In the said judgment, the Hon'ble Supreme Court observed that 'in the first charge sheet filed by the CBI in the year 2010, the CBI categorically mentioned that the killing of Tulsiram Prajapati is also a part of the very same conspiracy which is mentioned in the first FIR, but before the Supreme Court, a different stand was taken by the CBI'.
14. In the said judgment, the Hon'ble Supreme further observed as follows:
"It is also relevant to point out that when Writ Petition (Crl.) No. 115 of 2007 was pending, CBI, by way of an affidavit dated 19-8-2010, furnished the following information:
"(i) Tulsiram Prajapati's killing is a part of the same series of acts in which killing of Sohrabuddin and Kausarbi took place.
(ii) All the three killings are part of the same conspiracy.
(iii) Trial of all the three offences shall have to be one trial under Section 220 of the Code.
(iv) CBI be given formal permission to investigate Tulsiram Prajapati killing as "further investigation" in the first FIR filed by CBI which investigation was going on.
(v) If CBI is not formally given investigation of Tulsiram Prajapati, prosecution would face questions of "issue estoppel" and "res judicata".
In the said affidavit, CBI even prayed for "further investigation" in the first FIR which becomes evident from the prayer made by CBI in the last paragraph of the affidavit which reads as under:
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KVL, J WP No.11709 of 2020 "12. That on 12-8-2010, the Hon'ble Supreme Court (Mr Justice Aftab Alam and Mr Justice R.M. Lodha) has granted three more months to complete the investigation. Hence, it is prayed that orders for transferring Tulsiram Prajapati case to CBI may be issued for expeditious completion of investigation."
As rightly pointed out by Mr Mahesh Jethmalani, the above prayer of CBI makes it clear that CBI had also prayed for entrustment of Tulsiram Prajapati's encounter "to complete the investigation" for which three months' time was granted in WP (Crl.) No.6 of 2007 to complete the investigation in the first FIR. On reading the above said affidavit as a whole and the paragraphs quoted above in particular, it leaves no room for doubt that CBI itself prayed for "further investigation" so as to enable it to "complete the investigation in first FIR" filed by CBI."
57. In the investigation conducted by CBI, it has clearly emerged that killing of Tulsiram Prajapati was an integral part of the criminal conspiracy hatched by the accused arising out of the same transaction.
67. Thus, in view of the aforesaid provision, it is eminently required in the interest of justice that Tulsiram Prajapati fake encounter case be investigated and tried along with Sohrabuddin fake encounter case as the evidence procured so far shows that Tulsiram Prajapati's encounter took place as he was the prime witness to the Sohrabuddin's abduction. As such both these cold-blooded murders are interconnected, they ought not to be tried separately as it may give rise to conflicting findings, raise issues of issue estoppel and/or res judicata and end up derailing or frustrating the interest of justice."
"Legal aspects as to permissibility/impermissibility of second FIR:
Now, let us consider the legal aspects raised by the petitioner Amit Shah as well as CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to CBI by order dated 12-1-2010 till filing of the charge- sheet dated 4-9-2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge-sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried "in accordance with law".
"This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony, this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read 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 15 KVL, J WP No.11709 of 2020 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.
* * *
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. 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."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
Mr Raval, learned ASG, by referring T.T. Antony submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG 16 KVL, J WP No.11709 of 2020 further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati -- a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court:
(1) Upkar Singh v. Ved Prakash (2004) 13 SCC 292 (2) Babubhai v. State of Gujarat (2010) 12 SCC 254 (3) Chirra Shivraj v. State of A.P AIR 2011 SC 604, (4) C. Muniappan v. State of T.N.(2010) 0 SCC 567 In C. Muniappan this Court explained the "consequence test" i.e. if an offence forming part of the second 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 second 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 first FIR. In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan as well as in Chirra Shivraj, apply with full force since according to CBI itself it is the case where:
(i) The larger conspiracy allegedly commenced in November 2005 and culminated into the murder of Tulsiram Prajapati in December 2006 in a fake encounter.
(ii) The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eyewitness to the abduction and consequent murders of Sohrabuddin and Kausarbi.
(iii) Tulsiram Prajapati was allegedly kept under the control of the accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter.
In view of the factual situation as projected by CBI itself, the ratio laid down by this Court in C. Muniappan viz. merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one charge-sheet could not be filed (see T.T. Antony). In view of the consistent stand taken by CBI, at this juncture, CBI may not be permitted to adopt a contradictory stand."
"Summary: 52 (a) This Court accepting the plea of the CBI in Narmada Bai (Supra) that killing of Tulsiram Prajapati is part of the same series of cognizable offence forming part of the first FIR directed the CBI to "take over" the investigation and did not grant the relief prayed for i.e., 17 KVL, J WP No.11709 of 2020 registration of a fresh FIR. Accordingly, filing of a fresh FIR by the CBI is contrary to various decisions of this Court.
52 (f) In the case on hand, as explained in the earlier paras, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25/26.11.2005. We have already concluded that this Court having reposed faith in the CBI accepted their contention that Tulsiram Prajapati encounter is a part of the same chain of events in which Sohrabuddin and Kausarbi were killed and directed the CBI to "take up" the investigation."
"Conclusion: In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.
In view of the above discussion and conclusion, the second FIR dated 29- 4-2011 being RC No.3(S)/2011/Mumbai filed by CBI is contrary to the directions issued in judgment and order dated 8-4-2011 by this Court in Narmada Bai v. State of Gujarat and accordingly the same is quashed. As a consequence, the charge-sheet filed on 4-9-2012, in pursuance of the second FIR, be treated as a supplementary charge-sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial court to decide the same in accordance with law. Consequently, Writ Petition (Crl.) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Crl.) No. 5 of 2013."
15. As seen from the above judgment of the Hon'ble Supreme Court, it is specifically stated that, in the light of the specific stand taken by the CBI before the Hon'ble Supreme Court in the earlier proceedings i.e., in the counter-affidavit, status report etc., the Hon'ble Supreme Court came to 18 KVL, J WP No.11709 of 2020 the conclusion that filing of the second FIR and fresh charge sheet is violative of fundamental rights of the petitioners therein. But in the present case information that is received with regard to each complaint is with regard to a different cognizable offence, different occurrence and different incident. Hence, the said judgment does not come to the aid of the petitioners.
16. In Surender Kaushik's case (3rd supra), relied upon by the learned senior counsel for the petitioner, special leave petition was filed before the Hon'ble Supreme Court against the order of the Division Bench of the High Court declining to quash the FIR No.442 of 2012. The appellants before the Hon'ble Supreme Court, filed writ petition before the High Court, seeking to quash FIR on two counts, firstly, that no prima facie case existed for putting the criminal law into motion and, secondly, when on similar and identical cause of action and allegations, FIR No.425 of 2012 corresponding to Cr.No.475 of 2012 had already been registered, a second FIR could not have been lodged and entertained as law prohibits lodgment of the second FIR in respect of the same cognizable offence. Per contra, learned counsel for the respondents therein submitted that there is no absolute prohibition in law for lodgment of a second FIR and, more so, when allegations are made from different spectrum or, for that matter, when different versions are put forth by different persons and there are different accused persons. On considering the material on record, the Hon'ble Supreme Court held as follows:
"From the aforesaid decisions, it is quite luminous that the lodgement 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 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 19 KVL, J WP No.11709 of 2020 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 Singh, 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, lodgement of two FIRs is permissible.
In the case at hand, the appellants lodged FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including Appellant 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the governing body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinised, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter-complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the court concerned. The appellants or any of the other complainants or the accused persons may move the 20 KVL, J WP No.11709 of 2020 appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance.
17. As seen from the above judgment, what is stated is, lodgement of two FIRs is not permissible in respect of one and the same incident. It is also observed therein that there was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. But, in the present case, there is a specific allegation with regard to each bus, which is a separate incident and separate cognizable offence.
18. Learned senior counsel also relied upon the decision of the Hon'ble Supreme Court in Anju Chaudhary's case (5th supra), for the proposition that the second FIR in respect of same offence or incident forming part of same transaction as contained in first FIR, is not permissible in law. In the said case, the Hon'ble Supreme Court while referring to the various judgments, held as follows:
"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 to 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 21 KVL, J WP No.11709 of 2020 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, re-investigation 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. Rita Nag v. State of West Bengal:(2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali @ Deepak and Ors. (SLP (Crl) No. 9185-9186 of 2009 of the same date).
It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case. In the case of Ram Lal Narang v. State (Delhi Administration) : (1979) 2 SCC 322], the Court was concerned with the registration of a second FIR in 22 KVL, J WP No.11709 of 2020 relation to the same facts but constituting different offences and where ambit and scope of the investigation was entirely different. Firstly, an FIR was registered and even the charge-sheet filed was primarily concerned with the offence of conspiracy to cheat and misappropriation by the two accused. At that stage, the investigating agency was not aware of any conspiracy to send the pillars (case properly) out of the country. It was also not known that some other accused persons were parties to the conspiracy to obtain possession of the pillars from the court, which subsequently surfaced in London. Earlier, it was only known to the Police that the pillars were stolen as the property within the meaning of Section 410 Indian Penal Code and were in possession of the accused person (Narang brothers) in London."
"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 the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report Under Section 173 of the Code. The possibility that 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 investigating 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 rationalise 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, where 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 Court in the case of Babu Babubhai v. State of Gujarat and Ors. : (2010) 12 SCC 254. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc."
"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 23 KVL, J WP No.11709 of 2020 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, riots 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 riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj v. State of Andhra Pradesh :(2010) 14 SCC 444, the Court took the view that there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report."
"It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial."
"Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction."
"Even the offences which are stated to have been committed, and for which the two FIRs were registered in these respective cases were different and distinct. In the complaint filed by Parvez Parwaz, which was registered as a FIR, names of the persons were mentioned and a general investigation was called for, while FIR 145/2007 registered by Hazrat, was against unknown persons for damage of his property, which was for a specific offence, without any other complaint or allegation of any communal instigation or riot. In other 24 KVL, J WP No.11709 of 2020 words, these were two different FIRs relatable to different occurrences, investigation of one was no way dependent upon the other and they are neither inter-linked nor inter-dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case. Thus, we have no hesitation in coming to the conclusion that lodging of the subsequent FIR was not a second FIR for the same occurrence as stated in FIR 145/2007, and thus, could be treated as a First Information Report for all purposes including investigation in terms of the provisions of the Code. It was not in the form of a statement Under Section 162 of the Code."
19. As seen from the above judgment, the Hon'ble Supreme Court held that 'it has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not'. As held by the Hon'ble Supreme Court, the test of "sameness" has to be applied 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 based upon distinct and different facts and if the answer falls in the first category, the second FIR will be liable to be quashed. In case, the contrary is proved, where the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. It was held that 'for the same event and offences against the same people, there cannot be a second FIR'. But as seen from the facts of the present case, the incidents are different and occurrences are also different and they do not come under the category of same offence and same incident and hence, the above judgment relied upon by the learned senior counsel will not come to the rescue of the petitioners.
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20. The next decision referred by the learned senior counsel is, Upkar Singh's case (4th supra), wherein the appellant and respondent lodged two separate complaints giving different versions and the complaint of the respondent was registered by the police, but the complaint of the appellant was not registered. In the above judgment, the Hon'ble Supreme Court held as follows:
"Having carefully gone through the above judgment we do not think that this Court in the said cases of T.T. Antony v. State of Kerala & Ors. has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T.T. Antony v. State of Kerala & Ors. in paragraph 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) Cr.PC, this is what the Court observed :-"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 offences 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 Cr. PC or under Articles 226/227 of the Constitution"
"It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala and Ors. has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. In our opinion, this Court in that case only held any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount an improvement on the facts mentioned in the original complaint hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident.
This clearly shows that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to 26 KVL, J WP No.11709 of 2020 direct the police to register the complaint brought to his notice and investigate the same.
From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a large conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.
A perusal of the judgment of this Court in Ram Lal Narang vs. State (Delhi Administration): [1979 CriLJ 1346] also shows that even in cases where a prior complaint is already registered, a counter complaint is permissible but it goes further and holds that even in cases where a 1st complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang's case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang's case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanna (supra). However, it must be noticed that in T.T. Antony's case Ram Lal Narang's case was noticed but the Court did not express any opinion either way.
Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books, This cannot be the purport of the Code.
We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.
In the instant case, it is seen in regard to the incident which took place on 20th May, 1995, the appellant and the 1st respondent herein have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned 27 KVL, J WP No.11709 of 2020 police, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value."
21. As seen from the above judgment, the Hon'ble Supreme Court while explaining the ratio laid down in T.T.Antony's case (1st supra) held therein that 'in our opinion, this court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint'. The scope of enquiry in each case is different here. The subsequent complaints in the present case are distinct and different cognizable offences based on different facts and hence the ratio laid down in the said judgment does not apply to the facts of the present case.
22. Learned senior counsel also relied upon the decision in Prem Chand Singh's case (6th supra). The said judgment is with regard to the applicability of principle of double jeopardy, when the subsequent proceedings are barred. In the said case, the appellant has challenged the order rejecting his application for discharge. As seen from the facts of the said case, the 2nd respondent gave a general power of attorney to the appellant on the basis of which, the appellant sold certain lands belonging to the 2nd respondent; but the 2nd respondent lodged a complaint stating that he never executed any general power of attorney 28 KVL, J WP No.11709 of 2020 in favour of the appellant and that the appellant has forged his signature and created general power of attorney to sell his lands illegally, but the appellant was acquitted in the trial; respondent filed an application under Section 156(3) Cr.P.C. before the court and the same was forwarded to the police leading to registration of an FIR, alleging that the appellant had forged general power of attorney and that on the basis of the same, he has sold certain lands; the appellant filed an application for discharge referring to his acquittal previously and contending that he could not be tried for the same offence twice and that the second FIR was based on concealment of facts with regard to the earlier acquittal; the Judicial Magistrate rejected the discharge application on the ground that the order of acquittal had not been brought on record; revision against the same was dismissed holding that the grounds urged on behalf of the appellant can be urged at the time of framing of the charges; referring to Section 300 Cr.P.C., it was contended that the appellant could not have been tried for the same offence. In the light of those facts, the Hon'ble Supreme Court held as follows:
"It is, therefore, apparent that the subject matter of both the FIRs is the same general power of attorney dated 02.05.1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs is common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds.
In view of the conclusion that the substratum of the two FIRs are the same and that the appellant has already stood acquitted on 07.08.1998 of the charge with regard to forging of general power of attorney of the respondent, we are of the considered opinion that the subsequent prosecution of the appellant in FIR No. 114 of 2008 dated 09.10.2008 is completely unsustainable. In the result, the FIR dated 09.10.2008, the orders dated 18.12.2015, 31.05.2016 and the impugned order dated 01.03.2017 are set aside. The appeal is allowed."29
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23. As seen from the above judgment, the Hon'ble Supreme Court came to the conclusion that the substratum of the two FIRs are the same and that the appellant had already stood acquitted with regard to the said offence and hence, held that the subsequent prosecution is completely unsustainable.
24. As seen from the facts of the present case, the substratum of two FIRs is not one and the same. Some of the cases pertain to the allegation of uploading forged insurance policies. In one case complainant is also an accused. As already discussed above, Section 300 Cr.P.C., is not applicable to the facts of this case, as it applies only to the persons, who were already convicted or acquitted. In view of the same, the said judgment does not apply to the facts of the present case.
25. In 'State of Jharkhand through SP, CBI vs. Lalu Prasad Yadav7', relied upon by the learned Advocate General, the Hon'ble Supreme Court, held as follows:
"It was submitted by Shri Ranjit Kumar, learned Solicitor General appearing for CBI that as the offences relate to different treasuries for different financial years, for different amounts running into several crores with the help of different fake allotment letters, supply orders, different falsification of books of accounts, different suppliers, Article 20(2) of Constitution of India is not attracted as the offences cannot be said to be the same. Similarly the provisions of Section 300 Code of Criminal Procedure are not attracted. They are different offences and transactions. Reliance has been placed upon Section 212(2) of the Code of Criminal Procedure so as to contend that the period of charge for offence of misappropriation shall not exceed one year. There has to be different trials for different periods. Reference has also been made to Sections 219, 220 and 221 of Code of Criminal Procedure. There is difference between the same kind and the same offence. In different treasuries, distinct offences have been committed though of same kind by different sets of Accused persons. There have to be separate charges for distinct offences and, therefore separate trials are required to be 7 (2017) 8 SCC 1 30 KVL, J WP No.11709 of 2020 held. Principle of issue estoppel would not arise as parties are different, duties were different for different times."
"It was contended by Shri Surendra Singh, learned senior Counsel on behalf of Lalu Prasad Yadav that the charge for conspiracy against Lalu Prasad Yadav with respect to cases at Chaibasa, Patna, Ranchi, Bhagalpur and other places of Bihar, Calcutta and Delhi, was not specific to the period of defalcation. The charges were general for the period from 1988 to 1996. Thus, it was submitted that evidence has been adduced with respect to the general conspiracy between 1988 and 1996 which included the Treasuries in question in the cases where prosecution has been quashed. It was not the case put up Under Section 313 Code of Criminal Procedure that there was separate conspiracy for the period 1.4.1994 to 30.1.1995. In RC No. 64(A)/96 similar charges for conspiracy for the years 1988 to 1996 at Deoghar, Dumka, Ranchi, Patna and other places had been framed. In pursuance thereof an amount of Rs. 89,27,164.15/- has been withdrawn from Deogarh Treasury. As the conspiracy for Chaibasa and Deogarh is the same the evidence has already been adduced in the case relating to Chaibasa treasury. Thus for one and the same conspiracy Respondent Lalu Prasad Yadav cannot be tried over again in view of Article 20(2) and Section 300 Code of Criminal Procedure."
"The main question for consideration is whether in view of Article 20(2) of Constitution of India and Section 300 Code of Criminal Procedure, it is a case of prosecution and punishment for the "same offence" more than once. No doubt about it that the general conspiracy had been hatched as alleged for the period 1988 to 1996 but defalcations are from different treasuries for different financial years by exceeding the amount of each year which was allocated for Animal Husbandry Department for each of the district for the purpose of animal husbandry. The amount involved is different, fake vouchers, fake allotment letters, fake supply orders had been prepared with the help of different sets of Accused persons. Though there is one general conspiracy, offences are distinct for different periods. Question arises whether there is one general conspiracy pursuant to which various defalcations of different amounts have been made running into several years from different treasuries, by different sets of Accused persons. Whether there could have been only one trial or more than one. Whether legal requirement is for one trial or more than one in such cases. Article 20(2) of the Constitution is extracted hereunder:31
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20. (2) No person shall be prosecuted and punished for the same offence more than once"
"We are unable to accept the submissions raised by learned senior Counsel. Though there was one general charge of conspiracy, which was allied in nature, the charge was qualified with the substantive charge of defalcation of a particular sum from a particular treasury in particular time period. The charge has to be taken in substance for the purpose of defalcation from a particular treasury in a particular financial year exceeding the allocation made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders etc. The sanctions made in Budget were separate for each and every year. This Court has already dealt with this matter when the prayers for amalgamation and joint trial had been made and in view of the position of law and various provisions discussed above, we are of the opinion that separate trials which are being made are in accordance with provisions of law otherwise it would have prejudiced the Accused persons considering the different defalcations from different treasuries at different times with different documents. Whatever could be combined has already been done. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 Code of Criminal Procedure. Separate trials in such cases are the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases which have been concluded, it may be common to all the cases but at the same time offences are different at different places, by different Accused persons. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the P.C. Act etc. There was conspiracy hatched which was continuing one and has resulted into various offences. It was joined from time to time by different Accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2), obviously, there have to be separate trials. Thus it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the Accused persons are being tried again."
26. Learned Advocate General also relied upon the judgment of the Division Bench of High Court of AP (erstwhile combined High Court for the State of Telangana and for the State of Andhra Pradesh) in 'Jakir 32 KVL, J WP No.11709 of 2020 Hussain Kosangi vs State of Andhra Pradesh8'. In the said case, the issue which fell for consideration is, whether multiple FIRs can be registered in relation to the same set of facts. The grievance of the petitioners in the said writ petition is that multiple FIRs were registered in different police stations in several States alleging non-repayment of the deposits, which were collected by the Company and as a consequence, prisoner transit warrants were issued by various courts making the petitioners run around, without any redemption, infringing their fundamental rights. While examining the said issue, the Division Bench of this Court held as follows:
"A careful look at all the observations of the Supreme Court in T.T. Antony would show that the bar to the registration of a second FIR was read into the Code of Criminal Procedure, whenever the second or subsequent information related to "the same cognizable offence or the same occurrence or same incident giving rise to one or more cognizable offences". The emphasis laid by the Supreme Court was on the sameness of the truth and substance of the gravamen of the charges.
As we have pointed out earlier, an important aspect to be noted in the decision of the Supreme Court in T.T. Antony is that the Supreme Court did not quash the two FIRs in Crime Nos. 353 and 354 of 1994 registered at two different places on the very date of the occurrence, but quashed only the FIR filed after 3 years pursuant to the recommendation of the commission of inquiry. Therefore, it follows that the reasoning adopted by the Supreme Court was not applied to the second FIR filed on the same date."
27. After analyzing the decisions of the Hon'ble Supreme Court, the Division Bench of the erstwhile Andhra Pradesh High Court further held as follows:
"Our research has taken us to the above 21 decisions of the Supreme Court where this vexed question came up for consideration again and again. The summary that we have given above under the caption "Evolution of the Law", can also be given in a capsule in the form of a tabular column so that 8 2018(4) ALD 180 33 KVL, J WP No.11709 of 2020 the distinction that the Supreme Court drew between different types/categories of case could be easily appreciated.
Sl. Decision The dispute arose Whether the
No. out of second (2nd) FIR or
multiple FIRs filed
are valid or
invalid
1 Ram Lal Narang v. State Arose out of theft of Valid
(Delhi Administration) and two sandstone pillars
Om Prakash Narang & Ors v. of great antiquity.
State(Delhi Administration),
: (1979) 2 SCC 322
2 M. Krishna v. State of Arose out of amassing Valid
Karnataka : (1999) 3 SCC wealth
247 disproportionate to
one's source of income.
3 V.K. Sharma v. Union of Arose out of swindling Valid (Multiple
India: (2000)9 SCC 449 a large number of FIRs)
depositors on the false
pretext that their
deposits would be
returned with interest
on a subsequent date.
(White-Collar Crime)
4 Mohan Bhaitha v. State of Arose out of a dowry Held: -Offences
Bihar (2001)4 SCC 350 death. Note: - The more than one
question involved here committed by the
is not concerned about same persons
whether there can be could be tried at
more FIRs than one but one trial, if they
whether there can be can be held to be
more trials than one. in one series of
facts so as to form
the same
transaction.
5 T.T. Antony v. State of Arose out of police Third (3rd) Valid
Kerala, (2001) 6 SCC 350 firing resulting into
deaths of few people
and injuries to a large
number of people.
6 Narinderjit Singh Shani and Arose out of swindling Valid (multiple
another v. Union of India: of a large number of FIRs)
(2002)2 SCC 210 depositors on the false
pretext that their
deposits would be
returned with interest
on a subsequent date.
7 Kari Chaudhary v. Most. Sita Arose out of a murder Valid
Devi and Ors, : (2002) 1 SCC case.
714
8 State of Punjab v. Rajesh Arose out of swindling Valid (Multiple
Syal: (2002)8 SCC 158 of a large number of FIRs)
depositors on the false
pretext that their
deposits would be
returned with interest
on a subsequent date.
(White-Collar Crime)
9 Upkar Singh v. Ved Prakash,: Arose out of an
(2004) 13 SCC 292 attempt to murder and Valid
house-trespass cases
10 Rameshchandra Nandlal Arose out of swindling Valid (Multiple
Parikh v. State of Gujarat : of a large number of FIRs)
(2006) 1 SCC 732 depositors on the false
pretext that their
deposits would be
returned with interest
on a subsequent date.
11 Vikram v. State of Arose out of a murder Valid
Maharashtra :(2007) 12 SCC case.
332
34
KVL, J
WP No.11709 of 2020
12 Pramod Kumar Saxena v. Arose out of swindling Valid (Multiple
Union of India and Ors : of a large number of FIRs)
(2008)9 SCC 685 depositors on the false
pretext that their
deposits would be
returned with interest
on a subsequent date.
13 Nirmal Singh Kahlon v. State Arose out of scandal Valid
of Punjab and Others, : involving selection of
(2009) 1 SCC 441 Panchayat Secretaries.
14 C. Muniappan and others v. Arose out of setting Investigation of
State of Tamil Nadu,: (2010) fire to a university bus the Second FIR
9 SCC 567 and several public was clubbed with
buses. the investigation
of the First FIR. In
essence, two
complaints/FIRs
are clubbed
together and
investigated
jointly.
15 Bahubhai v. State of Gujarat Arose out of Invalid
: (2010) 12 SCC 254 altercation that took
place between
members of the two
communities.
16 Chirra Shivraj v. State of Arose out of an Second F.I.R. held
AP,: (2010) 14 SCC 444 attempt to murder Valid because SHO
case. made a mistake
by recording
information as a
fresh F.I.R. and
that this mistake
should not make
the case of
prosecution weak
especially when
no prejudice had
been caused.
17 Shiv Shankar Singh v. State Arose out of dacoity Valid
of Bihar, : (2012) 1 SCC 130 and murder.
18 Surender Kaushik and Others Arose out of fake and Invalid
v. State of UP,: (2013) 5 SCC fraudulent documents 148 prepared by the accused persons.
19 Amitbhai Anilchandra Shah Arose out of murder Invalid
v. CBI, : (2013) 6 SCC 348 cases
20 Anju Chowdry v. State of Arose out of a hate Valid
UP,: (2013) 6 SCC 384 speech
21 Yanab Sheikh@gagu v. State Arose out of a murder Invalid
of West Bengal, (2013) 6 case
SCC 428
Conclusion to be drawn:
From the above table, it could be seen that the cases in which the validity of multiple FIRs was raised, fell at least into six categories, such as -
(1) murder/attempt to murder; (2) mob violence leading to destruction of property, murder and/or encounter; (3) theft/dacoity; (4) abuse of official position, adoption of corrupt practices and amassing of wealth; (5) hate speech; and (6) companies receiving deposits from innumerable persons and there after defaulting in repayment. Out of the 21 cases listed above, 5 cases alone relate to non-repayment of deposit money by finance companies. In all these five cases where innumerable complaints were lodged by depositors, 35 KVL, J WP No.11709 of 2020 the Supreme Court did not choose to interfere. Therefore, the decision of the Supreme Court in TT Antony on which heavy reliance is placed by the counsel for the petitioners cannot go to the rescue of the petitioners.
Having disposed of the contention revolving around T.T. Antony, let us now take up for consideration, the decision of a learned single Judge of this Court in Akbaruddin Owaisi v. Government of Andhra Pradesh: 2013 (6) ALT
101. The said decision arose out of two hate speeches allegedly delivered by the writ petitioner, one at Nizamabad on 08-12-2012 and another at Nirmal on 22-12-2012. Interestingly, two FIRs came to be registered in respect of the speech delivered at Nizamabad on 08-12-2012, one by the Police themselves at Nizamabad and another in the Osmania University Police Station in Hyderabad on a private complaint lodged by an individual which was referred to the Chief Metropolitan Magistrate, Hyderabad, to the Police under Section 156 (3) of the Code. The petitioner before the learned single Judge in Akbaruddin Owaisi did not attack the FIR registered in Nirmal, but confined his attack only to the registration of two FIRs one at Nizamabad and another at Hyderabad in respect of the very same speech delivered at Nizamabad.
While allowing the writ petition in part and directing the transfer of investigation in both the FIRs to the CID, the learned Judge took note of two decisions, relating to hate speeches, one of the Delhi High Court in Maqbool Fida Husain v. Raj Kumar Pandey: 2008 Cri.L.J. 4107 and another of the Supreme Court in S. Khushbu v. Kanniammal : (2010) 5 SCC 600. While the case before the Delhi High Court related to a famous painter against whom several criminal complaints came to be registered on the ground that his paintings denigrated Hindu Gods, the case in S. Khushbu related to a speech made by an actor which was taken exception to by chauvinists in several parts of the State of Tamil Nadu leading to the registration of multiple FIRs.
The decision in Akbaruddin Owaisi arose out of a single cause of action, if we may borrow the said expression from the Civil Law. A single speech propagated or published or televised or publicised in different places cannot result in the prosecution of the individual in different Courts since the transmission of a single message cannot tantamount to different acts of crime. We must also point out at this stage that while the learned Judge, in his decision in Akbaruddin Owaisi, took note of T.T. Antony, S. Khushbu and M.F. Hussein, he did not take note of the decisions of the Supreme Court in Narinderjit Singh Sahni, Rajesh Syal and Pramod Kumar Saxena. Therefore, we do not think that the decision rendered in a case relating to a single act of crime committed by an individual, which, when propagated or publicised, is taken advantage of by several individuals to witch-hunt the person, cannot apply to a case where innumerable persons are alleged to have been cheated at different places at different points of time. To say that the offences committed against all those persons are punishable under the very same 36 KVL, J WP No.11709 of 2020 provisions and that therefore there cannot be multiple FIRs would be equivalent to saying that a person committing a series of thefts in several places cannot be made to face separate prosecutions in respect of each act of theft committed against different individuals at different points of time."
"But, nevertheless the learned Judge enlisted in Akbaruddin Owaisi at least 12 different types of cases where the rule that any further complaint against the same accused for the same incident, subsequent to the registration of a case is prohibited under the Code, will not apply. It will be useful to extract the relevant paragraph-21 of the decision in Akbaruddin Owaisi as follows:
"The declaration of law, in T.T. Antony, has not been diluted in any subsequent judgments of the Supreme Court even though exceptions have been carved out. (Amitbhai Anil Chandra Shah). The rule, that any further complaint against the same accused for the same incident, subsequent to the registration of a case is prohibited under the Cr.P.C, will not apply:-
(i) In case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the first FIR. (Rameshchandra Nandlal Parikh v. State of Gujarat: 2006 (3) SCJ 242
(ii) Where the incident is separate and the offences are similar or different, or where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first. (Anju Chaudhary v. State of Uttar Pradesh: 2013 (5) SCJ 825.
(iii) Where several distinct offences/incidents have been reported. In such a case the investigating agency should issue separate FIRs under Section 154(1) Cr.P.C. (M/s. Jagathi Publications Ltd. Rep. by Y. Eshwara Prasad Reddy v. Central Bureau of Investigation: 2012 (2) ALT (Crl) 285 (A.P.
(iv) ..........
(v) ...........
(vi) .........
(vii). In cases where there are different versions, they are in respect of two different incidents/crimes, and when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage and can also surface in another proceeding. (Nirmal Singh Kahlon v. State of Punjab: (2009) 1 SCC 441; Babubhai v. State of Gujarat : (2010) 12 SCC 254).
(viii). Even in cases where the first complaint is registered and investigation initiated, it is possible to file a further complaint based on the material gathered during the course of investigation. (Upkar Singh v. Ved 37 KVL, J WP No.11709 of 2020 Prakash: (2004) 13 SCC 292; Ram Lal Narang v. State (Delhi Administration): (1979) 2 SCC 322).
(ix). Where two FIRs are lodged in respect of the same incident having materially different allegations of commission of different cognizable offences. (T.T. Antony v. State of Kerala (2001) 6 SCC 181; Upkar Singh v. Ved Prakash (2004) 13 SCC 292.
(x) ...............
(xi). Where the FIRs are regarding independent and distinct offences, registration of a subsequent FIR cannot be prohibited on the ground that some other FIR had been filed against the petitioner in respect of other allegations made against him. (Rameshchandra Nandlal Parikh v. State of Gujarat: (2006) 1 SCC 732).
(xii). In cases where the same group of people commit offences in a similar manner in different localities falling under different jurisdictions.
Even if these incidents are committed in close proximity of time, there can be separate FIRs. (Anju Chaudhary v. State of Uttar Pradesh: 2013 (5) SCJ
825."
28. As seen from the above judgment the Division Bench has categorically held that where the offences are distinct and incidents are separate, separate FIRs have to be issued.
29. It is also the contention of the petitioners that the impugned action of the respondents is violative of Article 20(2) of the Constitution of India, which reads as follows:
"No person shall be prosecuted and punished for the same offence more than once."
30. Article 20(2) incorporates within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumstances it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
38
KVL, J WP No.11709 of 2020
31. In 'Maqbool Hussain vs. State of Bombay9', the Hon'ble Supreme Court held that 'fundamental right which is guaranteed under Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy' i.e., a person must not be put in peril twice for the same offence.
32. The Constitution Bench of the Hon'ble Supreme Court in 'S.A.Venkataraman vs. Union of India10' explained the scope of doctrine of double jeopardy, observing that 'in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words 'prosecuted' and 'punished' are to be taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted'. But in the present case petitioner is not prosecuted and punished and hence bar under Article 70(2) does not apply.
33. The next contention of the petitioners is that the impugned action is contrary to Section 300 of Criminal Procedure Code of 1973 (Cr.P.C.). In the present case, as the petitioners are not tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence, the said provision is not applicable to the facts of the present case.
34. The documents that are being relied upon are also different in each case and each act of alleged forgery is a separate offence. Different offences are alleged against different people and the role played by all the persons is different according to the prosecution. According to the learned Advocate-General, what is forged in one is not the same as in other. The modus operandi and the beneficiaries are also different, vehicle is different, registration of the vehicles is also made under 9 AIR 1953 SC 325 10 AIR 1954 SC 375 39 KVL, J WP No.11709 of 2020 different jurisdictions of the transport authorities. The vehicles are also re-registered in favour of different persons.
35. In view of the facts and circumstances of the case and in the light of the law laid down by the Hon'ble Supreme Court and the Division Bench of the erstwhile High Court of Andhra Pradesh, petitioner is not entitled for any relief and the Writ Petition is liable to be dismissed.
36. It is made clear that this Court has not looked into the merits of the claim of both the parties.
37. The writ petition is, accordingly, dismissed. No order as to costs. Miscellaneous Petitions pending, if any, shall stand closed in consequence.
___________________________ KONGARA VIJAYA LAKSHMI, J Date: 08.02.2021 BSS 40 KVL, J WP No.11709 of 2020 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI Writ Petition No.11709 of 2020 Date: 08.02.2021 BSS