Nazir Hussain Shah vs State And Anr

Through the medium of present petition filed under Section 561-A CrPC, the petitioner inter alia seeks quashment of FIR No.27/2018 dated 16.08.2018 registered under Section 5(1)(d),4(a) PC Act at Police Station Vigilance organization Jammu on complaint of respondent No.2 on the ground that the petitioner was posted at Police Station, Mandi as constable (Marhar) and during that period the petitioner approached respondent No.2 for taking loan in order to construct his residential house. Taking into consideration good relations, respondent No.2 advanced loan of Rs.75,000/- to the petitioner; that after sometime the petitioner got transferred from Police Station Mandi to Jammu; that respondent No.2 on his own started apprehending that the petitioner fled away with his money and under such apprehension respondent No.2 filed a written complaint against the petitioner before the SSP, Poonch and after enquiring the matter SHO P/S, Mandi was directed to lodge FIR against the petitioner and on the said directions an FIR No.48/2018 dated 04.06.2018 under Section 420 RPC was lodged against the petitioner; that on the same facts and circumstances of the case now Vigilance Department-respondent No.1 has also lodged an FIR No.27/2018 dated 13.08.2018 under Section 5(1)(d), 4(a) of the Prevention of Corruption Act. This FIR has been lodged on the enquiry report of Range Police Headquarters, Rajouri which was forwarded by SVC vide reference SVC/Complt/235/2017 dated 19.07.2018; that enquiry report was examined wherein it has been surfaced that the constable Nazir Hussain Shah was working in J&K Police as constable and was posted at Police Station, Mandi as Moharir, he demanded and accepted an amount of Rs.75,000/-from the complainant in lieu of getting his son recruited as constable in Police Department.

The only question to be decided now is, as to whether on same facts and circumstances of case, two FIRs can be lodged by two different agencies.

In 2013 (5) SCC 148 case titled Surender Kaushik and others Vs. State of U.P. & others, it is held as under:-

"13. In T.T. Antony Vs. State of Kerala (2001) 6 SCC 181, it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, came to hold that 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 and, therefore, 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. It was further observed that:

"20..... 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 of the Code."

It is worth noting that in the said case, the two-Judge Bench explained and distinguished the dictum in Ram Lal Narang Vs. State (Delhi Admn.) (1979) 2 SCC 322 by opining that the Court had indicated that the real question was whether the two conspiracies were in truth and substance the same and held that: (T.T. Antony case, SCC p. 198, para 21)

"21. ..... the conspiracies in the two cases were not identical. It further proceeded to state that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different since the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually."

Thereafter, the Bench explained thus: (T.T. Antony case, SCC p. 198, para 21)

"21. .....The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs - the first and the second - is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same."

In Upkar Singh Vs. Ved Prakash (2004) 13 SCC 292, a three-Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony (supra). The larger Bench took note of the fact that a complaint was lodged by the first respondent therein with Sikhera Police Station in Village Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making certain allegations against the appellant therein and some other persons. On the basis of the said complaint, the police had registered a crime under Sections 452 and 307 of the IPC. The appellant had lodged a complaint in regard to the very same incident against the respondents therein for having committed offences punishable under Sections 506and 307 of the IPC as against him and his family members. As the said complaint was not entertained by the concerned police, he, under compelling circumstances, filed a petition under Section 156(3) of the Code before the Judicial Magistrate, who having found a prima facie case, directed the concerned police station to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction, Crime No. 48-A of 1995 was registered for offences punishable under Sections 147, 148, 149 and 307 of the IPC.

Challenging the direction of the Magistrate, a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge, a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court, following its earlier decision in Ram Mohan Garg v. State of U.P.[10], dismissed the revision. While dealing with the issue, this Court referred to paragraph 18 of T.T. Antony (supra) and noted how the same had been understood: (Upkar Singh case, SCC p.296, para 11)

"11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter- case is not registrable and no investigation based on the said second complaint could be carried out."

After so observing, the Court held that the judgment in T.T. Antony (supra) really does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony (supra) and explained thus: (Upkar Singh case, SCC p.297, para 16)

"16. 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 has precluded an aggrieved person from filing a counter-case as in the present case."

To arrive at such a conclusion, the Bench referred to paragraph 27 of the decision in T.T. Antony (supra) wherein it has been stated that:

"16. ... „27. ... 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 of the Code or under Articles 226/227 of the Constitution.‟ (T.T. Antony case, SCC p. 200)"

Thereafter, the three-Judge Bench ruled thus: (Upkar Singh case, SCC pp. 297-98, para 17)

"17. ....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 because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident."

Be it noted, in the said verdict, reference was made to Kari Choudhary v. Sita Devi (2002) 1 SCC 714, wherein it has been opined that: (Upkar Singh case, SCC p.298, para 18)

"18. ... „11. .... there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the same investigating agency.‟ (Kari Choudhary case, SCC p. 717, para 11)"

Reference was made to the pronouncement in State of Bihar v. J.A.C. Saldanha 1980 1 SCC 554 wherein it has been highlighted that the power of the Magistrate under Section 156(3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the Police Act.

It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang (supra) and stated thus: (Upkar Singh case, SCC p.299, para 22)

"22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) 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 first 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 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 case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court did not express any opinion either way."

Explaining further, the Court in Upkar Singh case observed that if the law laid down by this Court in T.T. Antony (supra) is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.

In Pandurang Chandrakant Mhatre Vs. State of Mahaashtra (2009) 10 SCC 773, the Court referred to T.T. Antony (supra), Ramesh Baburao Devaskar v. State of Maharashtra (2007) 13 SCC 501 and Vikram v. State of Maharashtra (2007) 12 SCC 332 and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopaedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW-5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.

In Babubhai Vs. State of Gujarat (2010) 12 SCC 254 this Court, after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.

It is worth noting that in Babubhai 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 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 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."

In view of the above, it is settled law that two FIRs cannot be lodged by different agencies for the same occurrence. In present case, as the Police Station, Mandi has already lodged an FIR on the same facts and circumstances of the case i.e. FIR No.48/2018 dated 04.06.2018, so the FIR impugned lodged by the Vigilance Organization, Jammu is not maintainable. It is, therefore, quashed. However, the Police of Police Station, Mandi can add any other offence in FIR No.48/2018.

Disposed of as above.