Berger Paints India Limited and Others vs State of Karnataka and Others

A.N. Venugopal Gowda, J.—M/s. Berger Paints India Limited, the 1st petitioner in these two criminal petitions, is a Public Limited Company, incorporated under the provisions of the Indian Companies Act, 1956, having its registered Office at Kolkata. Petitioner No. 3 in Crl. P. 6829/2013 and petitioner Nos. 2 to 11 in Crl. P. 6886/2013 are working in various capacities with the 1st petitioner. 12th petitioner in Crl. P. 6886/2013 is a General Manager (Sales, GIA-South) of the 1st petitioner, having Office at Bengaluru. The 1st petitioner is engaged in the business of manufacturing of paints and allied substances and as a part of its business, has set up stock and distribution centers. One such center was set up at industrial premises bearing Katha No. 116, Block No. 5, Survey No. 46/2, Gharve Bhavi Palya, Hongasandra Village Post, Begur Hobli, Bengaluru South Taluk, having obtained the same on lease as per an agreement dated 24.12.2001 from Sri C. Ananda Reddy - 2nd respondent in Crl. P. No. 6886/2013.

In the first floor of the said building, M/s. N.F. Apparels Private Limited - 2nd respondent in Crl. P. No. 6829/2013, being a tenant, has set up a garment factory.

On 08.11.2012, at about 8.45 a.m., one Mr. Yatheesh, having entered the premises and noticed smoke emanating from the backside of the premises, where the generator set of M/s. N.F. Apparels Private Limited, had been installed and realizing that there has been a fire accident, informed the fire brigade and later, lodged a complaint with Madivala Police Station and a case for non-cognizable offence was registered.

Mr. C. Ananda Reddy, the landlord having lodged a complaint with the 1st respondent, on 09.11.2012, with regard to the same incident, case in Crime No. 898/2012 was registered for the offences punishable under Ss. 427 and 337 of IPC against the 1st petitioner and one Rajib De in Crl. P. No. 6886/2013.

M/s. N.F. Apparels Private Limited, a tenant of a portion of the said premises having filed P.C. No. 10144/2013, on 08.05.2013, before the III ACMM., Bengaluru in respect of the very same incident, the compliant was referred under S. 156(3) of Cr.P.C. to the 1st respondent for filing the investigation report. The 1st respondent having registered a case, filed FIR No. 888/2013 against the petitioners for the offences punishable under Ss. 3, 4, 5 and 6 of the Explosives Substances Act, 1908 and under S. 23 of Petroleum Act, 1934 and Ss. 285 and 286 of Indian Penal Code. Seeking quashing of the entire proceedings of the said case, Crl. P. No. 6829/2013 was filed.

Mr. C. Ananda Reddy, having filed P.C. No. 10145/2013, on 08.05.2013, before the III ACMM., Bengaluru against the petitioners in Crl. P. No. 6829/2013, in respect of the very same incident, learned Magistrate referred the complaint under S. 156(3) of Cr.P.C. to the 1st respondent for filing investigation report. The 1st respondent, on receipt of the said complaint, registered crime No. 898/2012 and filed FIR against the petitioners for the offences punishable under Ss. 427 and 337 of IPC. Crl. P. No. 6829/2013 was filed on 08.11.2013 to quash the entire proceedings of the said case.

Mr. Ananda Reddy, the owner of the premises, having filed a complaint on 09.11.2012, the 1st respondent registered a case in Crime No. 898/2012 for the offences punishable under Ss. 337 and 427 of IPC against the petitioners and one Mr. Rajib De. After investigation, final report having been submitted, cognizance was taken and C.C. No. 4520/2015 was registered by the III ACMM., Bengaluru for the offences punishable under Ss. 285, 337 and 427 of IPC read with Ss. 3, 4 and 5 of the Explosives Substances Act, 1908. Seeking quashing of the said case in Crl. P. No. 1242/2015 was filed and was disposed of on 03.03.2015.

Placing reliance on the decisions in the cases of T.T. Antony Vs. State of Kerala and Others, and Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation and Another, , Sri Ravi B. Naik, learned Senior Advocate, submitted that second or subsequent FIRs in respect of the same incident being impermissible, these petitions are liable to be allowed and FIRs in Crime Nos. 888/2013 and 889/2013 registered by the 1st respondent are liable to be quashed.

Learned advocates for the respondents, on the other hand, contended that the cognizance taken in C.C. No. 4520/2015 by the III ACMM., Bengaluru being in respect of the offences under Ss. 285, 286, 337 and 427 of IPC read with Ss. 3, 4 and 5 of the Explosives Substances Act, 1908 and the cases registered in Crime Nos. 888/2013 and 889/2013 being also with reference to S. 23 of the Petroleum Act, 1934, petitioners are not entitled to the relief sought in these petitions.

Perused the records and considered the rival contentions.

In T.T. Antony (supra), Apex Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. Relevant portion reads thus:

"19. The scheme of the Cr.P.C. is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on 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 evidence collected, he has to form opinion under Section 169 or 170 of Cr.P.C. as the case may be, and forward his report to the Magistrate concerned under Section 173(2) Cr.P.C. 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 Cr.P.C.

From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. 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 F.I.R. 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 of the Cr.P.C.

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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 Cr.P.C. 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 Ram Lal Narang Vs. State (Delhi Administration), , 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) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. 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 underway 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.P.C. or under Article 226/227 of the Constitution."

(emphasis supplied)

The proposition of law, making registration of fresh FIRs impermissible and as violative of Article 21 of the Constitution has been reiterated and affirmed by the Apex Court in:

"(1) Upkar Singh Vs. Ved Prakash and Others, ;

(2) Babubhai Vs. State of Gujarat and Others, ;

(3) Chirra Shivraj Vs. State of Andhra Pradesh, ;

(4) C. Muniappan and Others Vs. State of Tamil Nadu, ."

In the case of C. Muniappan (supra), Apex Court has explained 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 i.e., the offences covered in both the FIRs shall have to be treated as a part of the first FIR.

Apex Court, after survey of earlier decisions, in Amitbhai Anilchandra Shah (supra), has summarised the legal position and the relevant portion reads as follows:

"58.3. 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.

58.4. Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the station house diary, the officer in charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report(s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.

58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR."

(emphasis supplied)

In the instant case, registration of FIRs in Crime Nos. 888/2013 and 889/2013 is nothing but a consequence of the incident which had taken place on 08.11.2012, in respect of which, FIR in Crime No. 898/2012 was registered and after investigation, charge sheet was submitted, cognizance of which was taken and C.C. No. 4520/2015 was registered by the III ACMM., Bengaluru. Hence, filing of FIRs in Crime Nos. 888/2013 and 889/2013 being impermissible are liable to be quashed. However, there being provision to file supplementary charge sheet/s by seeking leave of the Court, which is seized of the matter, Investigation Officer may proceed in accordance with law. It is open to the Court, wherein, trial takes place, in respect of the offences which are the subject matter of C.C. No. 4520/2015, to direct the Investigating Officer, if necessary, to conduct further investigation in respect of the matters mentioned in the two private complaints (P.C. No. 10144/2013 and 10145/2013) and proceed in accordance with law.

In view of the above, FIRs in Crime Nos. 888/2013 and 889/2013 filed by the 1st respondent are quashed, subject to observation made supra.