Amarpal vs State of Uttar Pradesh and Others

Amarpal son of Bharat Singh, petitioner is before this Court with the request to quash the FIR dated 18.08.2015 bearing Case Crime No. 188 of 2015 under Section 408, 409, 420, 467, 468, 471 and 120-B IPC and under Section 36 of the Manarega Adhiniyam at Police Station Shergarh district Mathura and further prayer has been made for issuance of writ in nature of mandamus commanding respondents not to arrest the petitioner in reference of 18.08.2015 bearing Case Crime No. 188 of 2015 under Section 408, 409, 420, 467, 468, 471 and 120-B IPC and under Section 36 of the Manarega Adhiniyam at Police Station Shergarh district Mathura.

Factual matrix of the case in brief are that petitioner happened to be the Pradhan of village Bhimari block Chhata district Mathura and as against petitioner and others, application under Section 156(3) Cr.P.C has been moved by one Shiv Kumar son of Chhiman Lal complaining therein that petitioner in the capacity of Gram Pradhan in active collusion of Pawan Varma, Gram Vikas Adhikari, who happens to be the Ex-Officio Secretary of Gram Panchayat Dhimari and in active collusion of the official of Post Office, Shergrah got fictitious accounts opened and in the said fictitious accounts in question wages of 40 labourers of Mahatma Gandhi National Rural Employment Gurantee Scheme, to the tune of Rs. 10,78,660/- (Rs. Ten lacs seventy eight thousand six hundred sixty) has been misappropriated and diverted. In the said direction based on the said fraud and manipulation, complaint had been made before the Project Director pertaining to illegally opening of the accounts and illegal withdrawal of the amount in question and then in the inquiry so conducted clear cut report has been submitted to the effect that in active collusion of the petitioner alongwith Ex-Officio Secretary Pawan Varma and the official of Postal Department large scale fictitious accounts have been opened and amount in question has been misappropriated and based on the said report action has been directed to be taken but in spite of the said direction, action has not been taken, same impelled the complainant to move application under Section 156(3) Cr.P.C wherein directives have been issued for registering and investigating the case bearing Case Crime No. 119 of 2015 under Sections 408, 409, 420, 467, 468, 471 and 120-B IPC at Police Station Shergarh district Mathura. After the said FIR has been registered on 11.05.2015, it appears that another FIR has been lodged by Block Development Officer, Dr. Ajeet Kumar on 18.08.2015 bearing Case Crime No. 188 of 2015 under Section 408, 409, 420, 467, 468, 471 and 120-B IPC read with Section 36 of the Manarega Adhiniyam at Police Station Shergarh district Mathura. Lodging of second FIR, has forced the petitioner to be before this Court complaining therein that on the same set of facts second FIR has been registered whereas registration of second FIR is not at all permissible in law on the same set of facts accordingly any action taken pursuant to second FIR cannot be subscribed by law and said action has to be restricted and second FIR accordingly will have to go.

Petitioner with the complaint noted above came to this Court and this Court on 11.09.2015, asked the learned AGA to obtain necessary instruction, as to whether both the FIRs in question are operating in the same field of transaction or in different field.

On the matter being taken up today, learned AGA, Sri Faheem Ahmad, Advocate has obtained requisite instruction and based on the said instructions so received submission has been made by him that Section 154 doesn''t prohibit registration and investigation of two FIRs and here in the present case second FIR has been lodged by a statutory authority, who in law is obligated to lodge FIR, once illegality has been found in the transaction in question and there may be some similarity in the both the FIRs but the fact of the matter is that there is no sameness in the contents of FIR, in view of this, prayer that has been made by petitioner that second FIR in question on the same set of facts is liable to be quashed cannot be accepted.

In the backdrop of the arguments that have been so advanced we proceed to examine the relevant provision of Code of Criminal Procedure 1973 namely Chapter XII, which deals with information to the police and their powers to investigate.

Section 154 of the Code requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer in-charge of a police station, has to be reduced into writing by or under the direction of such officer and shall be signed by the person giving such information. The substance thereof shall be entered in a book to be kept by such officer in such form as may be prescribed by the State Government in this behalf. A copy of the information so recorded under Section 154(1) has to be given to the informant free of cost. In the event of refusal to record such information, the complainant can take recourse to the remedy available to him under Section 154(3). Thus, there is an obligation on the part of a police officer to register the information received by him of commission of a cognizable offence. The two-fold obligation upon such officer is that (a) he should receive such information and (b) record the same as prescribed. The language of the section imposes such imperative obligation upon the officer. An investigating officer, an officer-in-charge of a police station can be directed to conduct an investigation in the area under his jurisdiction by the order of a Magistrate under Section 156(3) of the Code who is competent to take cognizance under Section 190. Upon such order, the investigating officer shall conduct investigation in accordance with the provisions of Section 156 of the Code. The specified Magistrate, in terms of Section 190 of the Code, is entitled to take cognizance upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Section 157 deals with procedure for investigation. Section 172 deals with diary of proceeding in investigation, wherein on day to day basis record is to be maintained giving therein the time which information reached him, the time at which he began with the investigation and closed the investigation, the places visited by him and statement of circumstances ascertained through investigation. Section 173 deals with report of police officer on completion of investigation.

In the Case of Anju Chaudhary Vs. State of U.P. and Another, (2013) CriLJ 776 : (2013) 1 CTC 714 : (2012) 12 JT 582 : (2013) 1 RCR(Criminal) 686 : (2012) 12 SCALE 619 : (2013) 6 SCC 384 : (2013) AIRSCW 245 , after taking into consideration all the earlier judgments on the subject Apex Court has summed up as follows:

"14. On the plain construction of the language and scheme of Section 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 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 154of 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, reexamination 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. Reeta Nag Vs. State of West Bengal and Others, (2010) CriLJ 2245 : (2009) 11 SCALE 395 : (2009) 9 SCC 129 : (2009) 14 SCR 276 : (2009) 8 UJ 3984 : (2010) AIRSCW 476 and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No. 9185-9186 of 2009 of the same date).

The First Information Report 145/2007 lodged by Hazrat son of Bismillah related to burning of a shop prior to holding of a meeting. He categorically stated that he did not know the persons or names of the perpetrators who attacked the shop where he was working. This incident occurred at 6 p.m. as per the records while the meeting itself, as per respondent No. 2 was held after 8 p.m., though on the same date. His report clearly states that when he was going back to his house at about 8.30 p.m., he stopped at the place where the meeting was being held. The FIR registered by Hazrat was against unknown persons and related to a particular event and commission of a particular crime. There was no question of any provocation, conspiracy or attempt by the persons premeditatedly committing the offences which they committed.

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 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 interdependent. 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."

Once again Apex Court took up the matter in the case of Surender Kaushik and Others Vs. State of Uttar Pradesh and Others, (2013) 2 AD 520 : AIR 2013 SC 3614 : (2013) CriLJ 1570 : (2013) 3 JT 472 : (2013) 2 RCR(Criminal) 861 : (2013) 2 SCALE 491 : (2013) 5 SCC 148 : (2013) AIRSCW 1140 and held as follows:

"23. It is worth noting that in the said case, the Court expressed the view that the High Court had correctly reached the conclusion that the second FIR was liable to be quashed as in both the FIRs, the allegations related to the same incident that had occurred at the same place in close proximity of time and, therefore, they were two parts of the same transaction.

From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."

Apex Court once again in the case of Anju Chaudhary Vs. State of U.P. and Another, (2013) CriLJ 776 : (2013) 1 CTC 714 : (2012) 12 JT 582 : (2013) 1 RCR(Criminal) 686 : (2012) 12 SCALE 619 : (2013) 6 SCC 384 : (2013) AIRSCW 245 after considering all other earlier judgments on the subject including the judgment in the case of Anuj Chaudhary (Supra), Babubahai (Supra) and Surender Kaushik (Supra), held as follows:

"(a) This Court accepting the plea of the CBI in Narmada Bai Vs. State of Gujarat and Others, AIR 2011 SC 1804 : (2011) CriLJ 2651 : (2011) 2 Crimes 142 : (2011) 4 JT 279 : (2011) 3 RCR(Criminal) 12 : (2011) 4 SCALE 469 : (2011) 5 SCC 79 : (2011) 1 SCC(Cri) 1109 : (2011) 5 SCR 729 : (2011) AIRSCW 2417 : (2011) 3 Supreme 153 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., registration of a fresh FIR. Accordingly, filing of a fresh FIR by the CBI is contrary to various decisions of this Court.

b) The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the First Information Report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of evidence collected, Investigating Officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the concerned Magistrate under Section 173(2) of the Code.

c) Even after filing of such a report, if he comes into possession of further information or material, there is no need to 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 which is evident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. 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 the parameter that has been settled by the Apex Court, case in hand is being examined and what we find in the present case that as far as both the FIRs are concerned, the first FIR has been lodged by Shiv Singh, based on application moved under Section 156(3) Cr.P.C. for registering of FIR and therein allegations that have been mentioned are to the effect that Gram Pradhan, Amarpal with active collusion of Pawan Varma, Gram Vikas Adhikari, who happens to be the Ex-Officio Secretary of Gram Panchayat Dhimari as well as in active collusion of the official of Post Office, Shergrah got fictitious accounts opened and therein wages of 40 labourers to the tune of Rs. 10,78,660/- (Rs. Ten lacs seventy eight thousand six hundred sixty) has been misappropriated/diverted by appending therein fictitious signature. It has also been categorically mentioned therein that in the said direction, the complainant alongwith the labours made complaint before the Superintendent Post Office, Mathura and then inquiry has been got conducted and in the said inquiry, it has been reflected that fictitious accounts have been opened and wages that have been transferred has been misappropriated and therein petitioner''s complicity is also there and based on the same, direction has been given for taking action and similar direction has also been given for taking action against the official of the post office also. First informant has clearly proceeded to make a mention that not only accounts has been opened fictitiously but amount in question has also been diverted. First FIR is thus, confined to the fact that fictitious accounts have been opened in the post office in reference of first informant and other similarly situated daily labourers and in the said fictitious accounts wages have been transferred and thereafter in systematic way, it has been misappropriated.

Now, we would examine the second FIR in order to find out, as to whether offence that has been disclosed in the second FIR is the same offence that has been disclosed on earlier occasion or different offence has been committed in reference of another transaction.

As far as second FIR in question is concerned, same on its face value is short and cryptic FIR, but therein specific mention has been made that large scale illegality has been committed in execution of work under MANAREGA scheme and amount in question has been misappropriated/diverted in collusion with government officials and officials of postal department, after opening fake account and based on the same, second FIR in question has been lodged by one Dr. Ajeet Kumar on 18.08.2015 bearing Case Crime No. 188 of 2015 under Section 408, 409, 420, 467, 468, 471 and 120-B IPC read with Section 36 of the Manarega Adhiniyam at Police Station Shergarh district Mathura.

Scheme of things provide for standard operating procedure while dealing with the Manarega funds. In exercise of authority conferred under Section 29(1) Central Government National Rural Employment Gurantee Act, 2005, in the schedule, para-36 has been added and para-36 clearly obligates by mentioning that where financial impropriety is found, on prima facie basis then in all eventuality FIR should be lodged.

Once such is the statutory obligation to lodge FIR and once financial impropriety has been found then in this background contents of second FIR is being looked into to find out, as to whether it is the second FIR on the same facts. The contents of the same clearly proceeds to make mention of the fact that the District Magistrate, Mathura has proceeded to address a letter pointing out that large scale illegality has been committed in respect of execution of job work under Manarega scheme and not only this there has been diversion and misappropriation of funds in collusion of staff and members of postal staff and then second FIR has been got registered being Case Crime No. 188 of 2015 under Section 408, 409, 420, 467, 468, 471 and 120-B IPC and under Section 36 of the Manarega Adhiniyam. Thus, it is clearly reflected that there are twofold grievances that has been mentioned in the second FIR: (I) Large scale illegalities have been committed in execution of job work under Manarega scheme (ii) there is misappropriation and diversion of funds by opening fictitious accounts and transferring the amount and then withdrawing the same. Thus, in the second FIR in question, the first complaint is of large scale illegalities committed in execution of job work under Manarega scheme and second complaint is of misappropriation and diversion of funds in active collusion of government official and official of Post Office. Second part of the FIR is common to both the FIRs but second FIR on its face value contains major complaint of irregularity being committed in carrying and executing of job work under Manarega Scheme. Details of said illegality that has been so committed, in execution of job work, has been detailed out, in the report of the enquiry officer dated 13.03.2014, wherein various jobs have been shown to have been done, whereas on spot inspection being done, no such job work has been found, and at some places earlier job work has been shown whereas money has been withdrawn. There are total six items on this score and seventh item is of financial impropriety, as beyond the financial capacity, amount has been withdrawn on different dates.

Details of all such impropriety are detailed at page 44 and 45 of the paper book running from item Nos. 1 to 7.

All these allegations are not at all subject matter of first FIR. In view of this, to say that the second FIR in question is based on the same set of facts cannot be accepted. On second aspect of the matter, there is similarity but as far as first aspect of the matter is concerned, same contains details of illegalities/irregularities committed in carrying out the scheme and same doesn''t form part of the first FIR in question. Moreover in the first FIR, grievance that has been raised is personal in nature, inasmuch as first informant alongwith labourers has been complaining that their names have been used in opening of fictitious accounts and thereafter funds in question have been misappropriated/diverted whereas in the second FIR, contents that have been mentioned clearly reflects that social welfare scheme has been sought to be frustrated and on inquiry being made, prima-facie cognizable offence has been disclosed and FIR in question has been accordingly lodged.

Accordingly in the facts of the present case lodging of second FIR by the statutory authority in discharge of statutory function is not at all prohibited.

Consequently, writ petition sans merit and is accordingly dismissed.