Mohd Hasam @APPELLANT@Hash State of Rajasthan & Ors

Present petition has been filed under Section 482 Cr.P.C seeking quashing of FIR No.636/2017 registered at Police Station Kotwali Sikar, District

Sikar, for offences under Sections 147, 148, 149, 332, 353, 336, 307, 427 and 283 IPC and Sections 3 and 4 of PDPP Act.

Counsel for the petitioners has contended that on 28.12.2017 at about 5 pm an accident occurred near Maskat Hotel, Fatehpur Road, Sikar.

Counsel for the petitioners has contended that qua the said accident FIR No.0635 dated 29.12.2017 was registered at the instance of Suresh Kumar

driver of the bus who stated therein that he is driver of the bus No.RJ-10-PA-6183 and on 28.12.2017 he along with conductor Arun Khan was going

from Jaipur to Churu. One boy who was on the motorcycle made an attempt to overtake the bus from the left side and an accident occurred and the

motorcycle rider fell on the ground and died. Thereafter, a mob of 400-500 people gathered and they were armed with stones, lathis Rods and pipe

and they said that since the accident had been caused by the driver of the bus he be set on fire.

Counsel for the petitioners has stated that after petitioners obtained bail in FIR No.0635 dated 29.12.2017 registered at Police Station Kotwali Sikar,

District Sikar, FIR bearing No.636 dated 29.12.2017 was registered at the same police station.

Counsel for the petitioners has contended that it is stated in the FIR that the police rescued the driver of the bus and identical allegations have been

leveled in first and second FIR i.e. FIR No.635 and 636 of 2017 registered at Police Station Kotwali Sikar, District Sikar.

Ms. Meenakshi Pareek, ld. PP, has very fairly admitted that both the FIRs pertain to same incident. She has been unable to meet the argument

raised by counsel for the petitioners that FIR No.636 dated 29.12.2017 being qua the same incident is second FIR and having almost identical

allegations is not permissible.

It will be appropriate to reproduce following observations made by the Supreme Court in Amitbhai Anilchandra Shah v. Central Bureau of

Investigation & Anr., (2013) 6 SCC 348:

“37. 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. Anthony

(supra), 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 paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:

19.      The scheme of Code of Criminal Procedure is that anofficer in charge of a police station has to commence investigation as

provided in Section 156 or 157 Code of Criminal Procedure 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 the evidence collected, he has to form an opinion Under Section 169 or 170

Code of Criminal Procedure, as the case may be, and forward his report to the Magistrate concerned Under Section 173(2) Code of Criminal

Procedure. 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

Code of Criminal Procedure.

20.      From the above discussion it follows that under thescheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173

Code of Criminal Procedure only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of

Section 154 Code of Criminal Procedure. 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 Code of Criminal Procedure.

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 Code of Criminal

Procedure 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) Code of Criminal Procedure. It would clearly be beyond the purview of Sections 154 and 156 Code of Criminal

Procedure, 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 Code of Criminal Procedure 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.

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In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said

FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings

of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply

to the facts of the case on hand. Even otherwise, as pointed out by learned senior Counsel for the Petitioner, in Ramlal Narang (supra), the

chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the

second case.

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58.1. 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., registration of a fresh

FIR. Accordingly, filing of a fresh FIR by the CBI is contrary to various decisions of this Court.

58.2 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.

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 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.

After hearing counsel for the parties, in view of reliance placed upon the judgment rendered by Supreme Court in case of Amitbhai Anilchandra

Shah(supra), the present petition is accepted and the impugned FIR bearing No. 636/2017 is quashed.

It is ordered that the contents of the FIR No.636/2017 shall be treated as statement under Section 161 Cr.P.C. in the first FIR bearing No.635 dated

29.12.2017 registered at Police Station Kotwali Sikar, District Sikar.

In case, already charge-sheet has been filed in both the FIR I.e. bearing No.635 and FIR No.636 dated 29.12.2017 registered at same police station,

charge-sheet filed in FIR No.636 dated 29.12.2017 shall be treated as a supplementary chargesheet under Section 173(8) Cr.P.C. in case FIR No.635

dated 29.12.2017. However, if no charge sheet has been submitted in FIR No.636 of 2017 i.e. second FIR, version contained therein shall be

investigated as part of FIR No.635 dated 29.12.017 registered at Police Station Kotwali Sikar, District Sikar.