Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDCTION
CRIMINAL APPEAL NO. OF 2012
(Arising out of SLP (Crl) No.9475 of 2008)
Anju Chaudhary ... Appellant
Versus
State of U.P. & Anr. ...
Respondents
J U D G M E N T
Swatanter Kumar, J.
JUDGMENT
1. Leave granted.
2. A cardinal question of public importance and one that is
likely to arise more often than not in relation to the lodging of
the First Information Report (FIR) with the aid of Section 156(3)
of the Code of Criminal Procedure (for short, ‘the Code’) or
otherwise independently within the ambit of Section 154 of the
Code is as to whether there can be more than one FIR in
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relation to the same incident or different incidents arising from
the same occurrence.
3. The above question arises from the factual matrix which,
shorn of the unnecessary details, can be stated as follows:
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4. On 16 November, 2007, one Parvez Parwaz, Respondent
No.2, claiming himself to be a social activist filed an application
under Section 156(3) in the Court of the Chief Judicial
Magistrate, Gorakhpur. According to this complaint, one
Mahant Aditya Nath Yogi, Member of Parliament and leader of
an unregistered organization called the Hindu Yuva Vahini had
been spreading hatred amongst Hindus and Muslims for a
number of years and has also been causing fear amongst the
Muslim community and harming them, demolishing the
properties of Muslims and carrying out other acts of
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harassment. On 27 January, 2007 when the complainant,
Respondent No.2 herein, was returning home from the Railway
Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath,
Member of Parliament, Dr. Radha Mohan Dass Aggarwal,
Member of the Legislative Assembly, Dr. Y. D. Singh, Member of
the Legislative Council and Anju Chowdhary, Mayor of
Gorakhpur, the Minister of State and BJP Leader Shiv Pratap
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Shukla, other office bearers and thousands of activists of Hindu
Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as
various other persons whom the petitioner does not know by
name but can recognise, were holding a meeting as “Warning
Meeting”. The meeting which was addressed by Yogi Aditya
Nath who was saying that if blood of one Hindu be shed then
they will not register any FIR with the administration against
the bloodshed of one Hindu in the times to come, instead they
will get ten persons (Muslims) killed. If damage is done to the
shops and properties of Hindus, they would indulge in similar
activities towards the Muslims. Anything can be done to save
the glory of Hindus and all should prepare for a fight. Amongst
others, it was also stated in the complaint as under:
“He stated that we will not allow lifting of
Tazia anywhere in the Gorakhpur City and
the Gorakhpur District and we will also
celebrate our Holi with these Tazias. He
stated that we will have to take harsh
steps for the welfare of Hindus and we do
not want that the generations to come
remember us with bad names. He stated
that I do not understand that we will be
ready to take up those names, therefore,
be ready to fight your final battle. Member
of Parliament Yogi Aditya Nath stated that
once you stand up then you see that
Gorakhpur will remain peaceful for many
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years. If the administration does not take
revenge of the murder of the Trader’s son,
then we will take ourselves, we will
ourselves take revenge of that murder.
Member of Parliament Yogi Aditya Nath, in
his speech, termed the administration as
worthless and eunuch and the incidents as
Government sponsored terrorism and
challenging the democratic Government he
stated that they will destroy the law and
order and will take law in their own hands.
He also called for bandh of Gorakhpur and
Basti Divisions and directed the activists to
inform about this to every place through
every media. Thereafter, Member of
Parliament Yogi Aditya Nath led a torch
procession and hundreds of activists along
with abovenamed persons participated and
raised slogans in support of Yogi Aditya
Nath. In this procession, the slogan related
to spreading of hatred against Muslims and
sentiments of killing and harming them
was being raised with primary importance,
which was pronounced as “Katuye Kaate
Jayenge, Ram – Ram Chillanyenge”. The
petitioner got afraid very much by the
above incident and keeping in view the
danger to his life, went to the house of a
relative. The petitioner saw at many
places in the way that these elements
raising exciting slogans behaved
improperly by passing humiliating
comments on Burqa – clad women and
beared Muslim passers by and beat them
and fired several rounds in the air. All
these incidents including the public
meeting and torch procession was
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witnessed by a number of people apart
from me, who I know by name and
address, but I do not deem it proper to
reveal their names in the present situation
due to reason of insecurity.
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5. That after the night of 26 January,
2007, due to highly sensitive condition
prevailing in the town Gorakhpur, curfew
was imposed on three Police Station areas
of the Gorakhpur town and Section 144
was in force in entire Gorakhpur city area
including the places of public meeting and
the torch procession. Despite this, the
aforesaid unconstitutional meeting and
torch procession was organized and
conducted openly violating the Section 144
in presence Police Officers and the public
was provoked and directed to perform
criminal acts by the activists present there
and the activists of other places were
provoked through them. Aditya Nath Yogi
provoked Hindus to kill Muslims and rob
and set afire their houses and shops and to
destruct their religious places and Tazias
for the reason of the murder of Raj Kumar
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Agrahari (incident of 26/27 January, 2007
Gorakhpur Town) and the alleged incidents
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happending since 24 January, 2007 and
also provoked Muslims to not to celebrate
Muharram which was a conspiracy hatched
by him on the basis of his maligned
thought and to fulfil which, he was looking
for an appropriate situation. Under this
very conspiracy, criminal incidents were
carried out in the Gorakhpur and Basti
Divisions, which caused disruption of Law
and Order.
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6. That as a result of the speech given
by Yogi Aditya Nath in the public meeting
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on 27 January, 2007, torch procession and
conspiracy hatched by abovenamed
persons present with him, the shops,
houses, godowns and vehicles of Muslims
were robbed and set afire in Gorakhpur
Police Station Areas in Gorakhpur Town by
the Yogi supported Hindu Yuva Vahini,
activists of BJP, Vyapar Mandal, which
created an atmosphere of fear and terror.
Gorakhnath temple became main centre of
communal miscreant activities of the
followers of this Yogi Aditya Nath and their
refuge and these miscreants attacked the
houses of Muslims residing in the area
adjoining the temple premises, their shops
and godowns and the vehicles of Muslims
standing there (Trucks, Rickshaw,
Scooters, Cars, etc.) and set them afire
which caused which loss. Under the
criminal conspiracy and instigation of
Member of Parliament Yogi and the
abovenamed persons, the followers of Yogi
Aditya Nath killed Rashid R/O Sahabgunj
S/O Rasheed R/O Rahmat Nagar, P.S.
Rajghat in the Rajghat Police Station area
and such followers also tried to kill by
setting afire by pouring petrol on
Peshimam Tufail Ahmad S/O Munnavar
Hussain R/O Singharia in Cantt. Police
Station area and such followers also
caused huge loss by destructing Mosque
situated at Menhadia village under Police
Station Gagaha and such followers also set
afire the religious epic Kuran in the Mosque
of Village Etkhauli and caused loss by
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destructing the Mosque under the Police
Station Gagaha and such followers also set
afire the madarsa situated in village
Vasudiha under Police Station Gagaha and
also set afire Tazias and such followers also
set afire the shops of Abdulla S/O of
Sharfuddin, Shahur, Riyaz all Muslims at
Bhaluan Chouraha under Police Station
Gagaha and the shops of Muslims named
Fakharuddin and Islam were also set afire
apart from Irshad Tent House at Jaitpur
Couraha under Sahajnawan Police Station
and such followers also destructed and
destroyed the Eidgaah situated in village
Rudlapur P.S. Khorabar and Eidgaah
situated in village Dumri (Niwas) P.S.
Sahajanawan, and Eidgaah situated in
village Mustafabad @ Mallaur P.S.
Sahjanawan and the Mosque situated in
village Bhhopgarh P.S. Gola District
Gorakhpur. Tazias were not allowed to be
lifted at many places in Gorakhpur district
and at many places where the Tazia
procession were carried out, they were
destructed and set afire there by doing
miscreant acts there. The shops of Salim
S/O Shaukat in village Jaddupatti, Ashiq
Band, Anwar barber, Hafizullah and Jabbar
in village Menhdeva under Police Station
Sikrigunj were also set afire under the
same conspiracy. These miscreants also
robbed and set afire the shop of Tajammul
Hussain in village Dhabra of Police Station
Sikrigunj. In the same way, the shops of
Nadir, Ashiq Mukhtar were robbed and set
afire in Belghat and such miscreants also
attacked the mosque situated in village
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Bhainsa P.S. Bansgaon and destroyed it’s
gate and also destructed shops of two
Muslims in the market.
7. That the followers of Aditya Nath Yogi
and activists – miscreants of the
abovenamed organization robbed and set
afire the buses of the roadways by blocking
the roads and the government and private
other vehicles were also robbed and set
afir4e. The conduction of roadways buses
in Gorakhpur and Basti Division remained
effected during the period from 29.01.2007
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to 5 February, 2007 and other adjoining
Division also remained effected. During
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the period from 9 January to 31 January,
2007, the followers and activists of Yogi
Aditya Nath destroyed more than 22 buses
of the roadways on different places under
this conspiracy and also caused loss by
setting them afire, in which 14 roadways
buses belonged to Gorakhpur areas and 8
buses belonged to outer areas. On date
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31 January, 2007 road buses in the
Nichnaul depot in Maharajgunj district were
also destructed and set afire by the
followers of Yogi Aditya Nath.
JUDGMENT
8. That Railways was disrupted by the
followers of Yogi Aditya Nath Hindu Yuva
Vahini, BJP and Vyapar Mandal and about
more than 14 trains were set afire causing
loss and the Yogi supported miscreants of
these organizations pelted stones and
destructed the office of the SDM situated in
Bansgaon and office of the DM at
Gorakhpur under the criminal conspiracy
and flamboyant speech against the
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government and instigation for criminal
acts by the persons abovenamed and in
the same way the miscreants of these
organizations robbed and set afire the
shops of Muslims in other Kasbas Khajani,
Kauriram, Bansgaon, etc. of the Gorakhpur
district. In Kasba Khajani, these
miscreants entered the mosque and and
Madarsa Arabia Ahal-e-Sunnat and robbed
and destroyed the same and also robbed
and set afire the shops of 15 Muslims,
whose details have been mentioned in the
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petition dated 5 July, 2007 written by
Mohammad Asad Hayat to the Senior
Superintendent of Police, Gorakhpur and
the vehicles of Muslims plying on the road
were also made targets. In Kasba Gola,
the shops of Akhtar Hussain S/O
Muhhamad Umar, Gulab Hussain S/O
Ismail, Abrar S/O Sarfaraz, Aftab S/O Noor
Alam, Feroz and Tahir were also robbed
and set afire. In Kasba Kauriram, the
shops of Nabi Muhammad, Nizamuddin,
Majnu and Yusuf were also set afire. In
Kasba Bansgaon, the shops of Tazammul
Hussain and Dr. Siraz Ansari were also
robbed and burnt. The Muslims aggrieved
by these incidents were not heard by the
Police. Apart from this, the shops, houses
and Tazias of Muslims were robbed and
burnt in many rural areas of Gorakhpur
district. All these incidents have been
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published in Newspapers from 29 January,
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2007 to 15 February, 2007. All these
criminal acts were done by the follower
activists of Yogi Aditya Nath connected to
Hindu Yuva Vahini, BJP and Vyapar Mandal
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on instigation by aforesaid enraging
speech by Yogi Aditya Nath and under the
conspiracy hatched by Yogi Aditya Nath
and other abovenamed persons.
9. That Yogi Aditya Nath delivered a
enraging speech addressing “Hindu Chetna
Rally” in Kasba Kasaya District Padrauna
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on 28 January, 2007 and asked the Hindus
that they shed fear of death from their
hearts. It is necessary to mention here
that in Purvanchal, Hindu Yuva Vahini
under the leadership of Yogi Aditya Nath
was hatching a conspiracy to disrupt
communal harmony, to annoy Muslims and
to harm them since earlier times and was
looking for an appropriate situation for the
same and it’s activists were active for the
same. This appropriate situation met them
in the background of murder of Rajkumar
Agrahari in Gorakhpur town in the night of
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26/27 January, 2007. The activists of
Hindu Yuva Vahini and BJP were jointly
holding public meetings at the different
places since first week of January 2007
itself in Kotwali Padrauna area of
Kushinagar district and were raising
slogans that if you have to live in
Purvanchal, then you must have to chant
name of Yogi and whoever chants the
name of Ali, he will be beaten in every
street. The office bearers and activists of
Hindu Yuva Vahini were delivering
communal speeches and were canvassing
that Muslims must be taught a lesson and
they have to be harmed to such an extent
that they do not dare raise their heads and
any of their religious ceremony has not to
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be allowed to be completed. In this
respect, all such information are recorded
in the G.D. of Kotwali Padrauna town on
different dates in the month of January,
2007.
10. That all the preparations to carry out
such wrongful acts and spread the same in
Gorakhpur Division and Basti Division had
been completed by Hindu Yuva Vahini, BJP
and Vyapar Mandal under the leadership of
Yogi Aditya Nath and the speech delivered
by Yogi Aditya Nath in the aforesaid
“Warning” meeting and the torch
procession conducted on Gorakhpur
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Railway Station in the night of dated 27
January, Gorakhpur Railway Station in the
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night of date 27 January, 2007 and the
“Hindu Chetna Rally” conducted in Kasaya
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of district Kushinagar on 28 January, 2007
further provoked and directed their
activists and thereafter Yogi Aditya Nath
got himself arrested at the border of
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Gorakhpur district on 28 January, 2007
while returning from Kasaya under
conspiracy and it was canvassed by the
activists of Hindu Yuva Vahini, BJP and
Vyapar Mandal under conspiracy only that
the administration has arrested the
prophet of Hindu Welfare, hence got the
brawl spread in relation to this arrest the
background background of the public
provocation on account of aforesaid
speech. And robbed, burnt and destroyed
and properties of Muslims, their religious
places, epics, emblems, Tazias and
government vehicles and buildings, offices
buses of roadways and railways and in this
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sequence, condemnable crimes killings of
Muslims and attempt to kill Muslims were
carried out.”
5. Another very vital fact, that requires to be noticed at this
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stage itself, is that on 26 January, 2007, Rajkumar Agrahari, a
Hindu boy was murdered in Gorakhpur, which resulted in
breaking out of communal violence in the city and imposition of
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curfew under Section 144 of the Code. On 27 January, 2007 a
condolence meeting for the murder of Raj Kumar was organised
which was attended by many persons including Anju
Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath,
Member of Parliament from that constituency. It appears from
the record that the High Court had also passed some orders in
regard to the investigation of the case and finally the police
had registered a case under Section 302 of the Indian Penal
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Code, 1860 (for short ‘IPC’), and had even filed a charge sheet
under Section 173 of the Code before the Court of competent
jurisdiction against six unknown accused persons.
6. Apart from this incident and before the public meeting
attended by above-stated Anju Chaudhary, another incident
took place at the shop of one Hazrat S/o Bismilla under Police
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Station Cantt. In this incident, the shop of Hazarat was set on
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fire at about 6 p.m. on 27 January, 2007 causing heavy
damage to the same. In fact, as per the report lodged by him,
he was working in that shop and owner of the shop was one
Md. Isa Ansari. According to him, some unknown persons,
claiming to be from Hindu Yuva Vahini, had set the shop on fire.
He neither knew their names nor their addresses. This report
was sent by post and was, thus, received by the Police Station
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and registered as FIR No.145 of 2007 on 3 February, 2007.
The police had registered a case against unknown persons
under Sections 147, 427, 436 and 506 IPC read with Section 23
of the U.P. Gangsters and Activists Prevention Act and Section 7
of the Criminal Law Amendment Act.
7. The complaint application under Section 156 IPC was filed
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by Parvaz on 16 November, 2007, nearly 10 months after the
date of occurrence. This application, which was heard by the
learned Chief Judicial Magistrate, was rejected vide order dated
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29 July, 2008. The learned Magistrate expressed the opinion
that since Crime Case No.145 of 2007 had already been
registered, as noticed above, there was no propriety to register
an FIR again. The intention of the legislature was to provide
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speedy criminal law and justice to all. Thus, there was no need
to conduct fresh investigation by another person merely by
lodging a fresh FIR. The Court held that to pass such an order
was not justifiable and rejected the application. The thrust of
the order of the learned Magistrate was primarily on this aspect
of the case.
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8. Aggrieved from the order dated 29 July, 2008, Parvaz
filed a revision petition before the High Court. The High Court
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vide its judgment dated 26 September, 2008 set aside the
order of the learned Magistrate under revision and directed the
Magistrate to pass a fresh order on the application of
respondent No.2. While passing this order, the Court held as
under :
“11. In addition to the aforesaid averments,
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various other allegations have also been
made in the application under Section
156(3) Cr.P.C. From all these allegations,
prima facie cognizable offences of very
serious nature requiring police investigation
are disclosed. Hence, the learned CJM
Gorakhpur ought to have passed the order
in present case for registration of FIR
against the persons named in the
application under Section 156(3) Cr.P.C.
and its investigation by the police, but it is
very unfortunate that due to lack of
adequate legal knowledge, without going
into the allegations made in that
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application, the learned CJM has rejected
the application merely on the ground that
in view of the FIR registered at case Crime
No.145 of 2007 at P.S. Cantt., there is no
justification to get the second FIR
registered. This view of the learned CJM is
wholly erroneous. Annexure (iv) is the copy
of the FIR, which was registered at Case
Crime No.145 of 2007 at P.S. Cantt
Gorakhpur on the basis of the application of
Hazarat S/o Vismilla. On perusal of this FIR,
it is revealed that the said FIR relates to the
incident, which had occurred on 27.01.2007
at about 6.00 p.m., in which damage was
caused to the shop of the complainant
Hazarat by some named persons of Hindu
Yuwa Wahini. That FIR was lodged
regarding one incident only, whereas in the
application under Section 156(3) Cr.P.C. a
number of incidents have been mentioned,
which occurred on different places affecting
different persons. Therefore, it cannot be
said that the FIR registered at Case Crime
No.145 of 2007 covers all the incidents
mentioned in the application under Section
156(3) Cr.P.C. As such, there was no legal
bar in this case to get the First Information
Report registered on the basis of the
application moved by the applicant
revisionist under Section 156(3) Cr.P.C. and
its investigation by the police, because all
the allegations made in the said application
and in the FIR registered at Case Crime
No.145 of 2007 are not the same.
JUDGMENT
12. Although, in view of law laid down by a
Division Bench of this Court in the case of
Sukhwasi Vs. State of U.P. 2007 (59) ACC
739 in which Full Bench decision of the case
of Ram Babu Guta & Ors. Vs. State of U.P.
2001 (43) ACC 50 has been relied upon,
application under Section 156(3) Cr.P.C.
can be treated as complaint, but on the
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basis of the allegations made in the
application under Section 156(3) Cr.P.C. in
the present case prima facie cognizable
offences of very serious nature requiring
police investigation are disclosed. Hence,
treating the application under Section
156(3) Cr.P.C. as complaint in present case
would not be legal and justified. While
passing order for treating the application
under Section 156(3) Cr.P.C. as complaint,
the following observations made by the Full
Bench of this Court in the case of Ram Babu
Gupta (supra) must be kept in mind by the
Magistrate/Judges:-
“However, it is always to be kept in
mind that it is the primary duty of the
police to investigate in case involving
cognizable offences and aggrieved
person cannot be forced to proceed in
the manner provided by Chapter XV
and to produce his witnesses at his
cost of bring home the charge to the
accused. It is the duty of the state to
provide safeguards to the life and
property of a citizen. If any intrusion
is made by an offender, it is for the
State to set the law into motion and
come to the aid of the person
aggrieved.”
JUDGMENT
13. Therefore,, having regard to the afore
cited observations made by the Full Bench,
the Magistrates/Judges should not shirk
their legal responsibility to pass an order
for registration of the FIR and its
investigation by the police on the
applications under Section 156(3) Cr.P.C. in
the cases where on the basis of the
averments made therein and the material,
if any, brought on record in support
thereof, prima facie cognizable offence of
serious nature requiring police
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investigation is made out and in such cases
the aggrieved person should not be
compelled to collect and produce the
evidence at his cost to bring home the
charges to the accused by passing an order
to treat the application under Section
156(3) Cr.P.C. as complaint thereby forcing
the aggrieved person to proceed in the
manner provided by Chapter XV Cr.P.C.
XXX XXX XXX
19. Consequently, the revision is allowed.
The impugned order is hereby set aside the
Chief Judicial Magistrate Gorakhpur is
directed to pass fresh order on the
application dated 16.11.2007 moved by the
applicant-revisionist Parvaz Parwaz, under
Section 156(3) Cr.P.C. and it must be
ensured that after registration of the FIR on
the basis of that application, proper
investigation is carried out.”
9. In the present appeal by way of special leave, the
appellant Smt. Anju Chaudhary challenges the legality and
correctness of the order of the High Court primarily on the
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following grounds :
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(a) The order passed by learned CJM dated 29 July, 2008 did
not suffer from any error of jurisdiction and, thus, the High
Court could not have upset the said order in exercise of its
revisional jurisdiction.
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(b) While making certain observations, the High Court, in the
impugned order held that prima facie cognizable offences
were made out and while virtually directing the learned
Magistrate to get an FIR registered, has foreclosed the
exercise of judicial discretion by the learned Magistrate.
As such, the order of the High Court is not sustainable.
(c) In law, there cannot be two FIRs registered in relation to
the same occurrence or different events or incidents two
or more but forming part of the same transaction. The
direction to register a second FIR, therefore, is contrary to
law and the very spirit of Section 154 of the Code.
(d) The order of the High Court is in violation of the principles
of natural justice inasmuch as the High Court neither gave
any notice nor heard the appellant before passing the
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impugned order dated 26 September, 2008.
10. Contra to the above submissions made by the appellant,
the counsel appearing for the State as well as respondent No.2
have supported the order of the High Court in law as well as
with reference to the facts of the case in hand. It is contended
on their behalf that there were no two separate FIRs in relation
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to the same offence or occurrence, but these FIRS related to
two different incidents which is permissible in law. The
appellant was not entitled to any hearing in law at the stage of
filing the FIR, and in any case no direction has been made to
register a case particularly against the appellant for any given
offence. Thus, the order of the High Court does not call for any
interference.
11. Having noticed the contentions of the parties and in order
to complete the factual matrix of the case, we may also notice
at this stage that in furtherance to the order of the High Court
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dated 26 September, 2008, the learned CJM, vide order dated
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17 October, 2008 accepted the application of respondent No.2
and directed the Police Station Cantt., Gorakhpur to register the
case under appropriate sections and to ensure the investigation
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in terms of the order passed by the High Court. A copy of the
order was placed before this Court during the course of
hearing.
12. Since all these contentions are inter-related and inter-
dependant, it will be appropriate for the Court to examine them
collectively. Of course, the foremost contention raised before
us is as to whether it is permissible to register two different
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FIRs in law. We may deal with the legal aspect of this issue first
and then turn to the facts.
13. 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.
14. 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
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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
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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.
15. 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
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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
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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 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
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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
22
Page 22
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
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the Code. [Ref. Rita Nag v. State of West Bengal [(2009) 9 SCC
129] and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl)
No.9185-9186 of 2009 of the same date).
16. 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
23
Page 23
and whether its scope of inquiry is entirely different or not. It
will not be appropriate for the Court to lay down one
straightjacket 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 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 property) out of the country. It was also not
known that some other accused persons were parties to the
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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 IPC and were in possession
of the accused person (Narang brothers) in London. The Court
declined to grant relief of discharge to the petitioner in that
case where the contention raised was that entire investigation
24
Page 24
in the FIR subsequently instituted was illegal as the case on
same facts was already pending before the courts at Ambala
and courts in Delhi were acting without jurisdiction. The fresh
facts came to light and the scope of investigation broadened by
the facts which came to be disclosed subsequently during the
investigation of the first FIR. The comparison of the two FIRs
has shown that the conspiracies were different. They were not
identical and the subject matter was different. The Court
observed that there was a statutory duty upon the Police to
register every information relating to cognizable offence and
the second FIR was not hit by the principle that it is
impermissible to register a second FIR of the same offence.
The Court held as under :
“20.Anyone acquainted with the day-to-day
working of the criminal courts will be alive
to the practical necessity of the police
possessing the power to make further
investigation and submit a supplemental
report. It is in the interests of both the
prosecution and the defence that the police
should have such power. It is easy to
visualize a case where fresh material may
come to light which would implicate
persons not previously accused or absolve
persons already accused. When it comes to
the notice of the investigating agency that
a person already accused of an offence has
a good alibi, is it not the duty of that
agency to investigate the genuineness of
JUDGMENT
25
Page 25
the plea of alibi and submit a report to the
Magistrate? After all, the investigating
agency has greater resources at its
command than a private individual.
Similarly, where the involvement of persons
who are not already accused comes to the
notice of the investigating agency, the
investigating agency cannot keep quiet and
refuse to investigate the fresh information.
It is their duty to investigate and submit a
report to the Magistrate upon the
involvement of the other persons. In either
case, it is for the Magistrate to decide upon
his future course of action depending upon
the stage at which the case is before him. If
he has already taken cognizance of the
offence, but has not proceeded with the
enquiry or trial, he may direct the issue of
process to persons freshly discovered to be
involved and deal with all the accused in a
single enquiry or trial. If the case of which
he has previously taken cognizance has
already proceeded to some extent, he may
take fresh cognizance of the offence
disclosed against the newly involved
accused and proceed with the case as a
separate case. What action a Magistrate is
to take in accordance with the provisions of
the CrPC in such situations is a matter best
left to the discretion of the Magistrate. The
criticism that a further investigation by the
police would trench upon the proceeding
before the court is really not of very great
substance, since whatever the police may
do, the final discretion in regard to further
action is with the Magistrate. That the final
word is with the Magistrate is sufficient
safeguard against any excessive use or
abuse of the power of the police to make
further investigation. We should not,
however, be understood to say that the
police should ignore the pendency of a
proceeding before a court and investigate
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26
Page 26
every fresh fact that comes to light as if no
cognizance had been taken by the Court of
any offence. We think that in the interests
of the independence of the magistracy and
the judiciary, in the interests of the purity
of the administration of criminal justice and
in the interests of the comity of the various
agencies and institutions entrusted with
different stages of such administration, it
would ordinarily be desirable that the police
should inform the court and seek formal
permission to make further investigation
when fresh facts come to light.
21. As observed by us earlier, there was no
provision in the CrPC, 1898 which,
expressly or by necessary implication,
barred the right of the police to further
investigate after cognizance of the case
had been taken by the Magistrate. Neither
Section 173 nor Section 190 lead us to hold
that the power of the police to further
investigate was exhausted by the
Magistrate taking cognizance of the
offence. Practice, convenience and
preponderance of authority, permitted
repeated investigations on discovery of
fresh facts. In our view, notwithstanding
that a Magistrate had taken cognizance of
the offence upon a police report submitted
under Section 173 of the 1898 Code, the
right of the police to further investigate was
not exhausted and the police could exercise
such right as often as necessary when fresh
information came to light. Where the police
desired to make a further investigation, the
police could express their regard and
respect for the court by seeking its formal
permission to make further investigation.
JUDGMENT
22. As in the present case, occasions may
arise when a second investigation started
independently of the first may disclose a
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Page 27
wide range of offences including those
covered by the first investigation. Where
the report of the second investigation is
submitted to a Magistrate other than the
Magistrate who has already taken
cognizance of the first case, it is up to the
prosecuting agency or the accused
concerned to take necessary action by
moving the appropriate superior court to
have the two cases tried together. The
Magistrates themselves may take action
suo motu. In the present case, there is no
problem since the earlier case has since
been withdrawn by the prosecuting agency.
It was submitted to us that the submission
of a charge-sheet to the Delhi court and the
withdrawal of the case in the Ambala court
amounted to an abuse of the process of the
court. We do not think that the prosecution
acted with any oblique motive. In the
charge-sheet filed in the Delhi court, it was
expressly mentioned that Mehra was
already facing trial in the Ambala Court and
he was, therefore, not being sent for trial.
In the application made to the Ambala
Court under Section 494 CrPC, it was
expressly mentioned that a case had been
filed in the Delhi Court against Mehra and
others and, therefore, it was not necessary
to prosecute Mehra in the Ambala court.
The Court granted its permission for the
withdrawal of the case. Though the
investigating agency would have done
better if it had informed the Ambala
Magistrate and sought his formal
permission for the second investigation, we
are satisfied that the investigating agency
did not act out of any malice. We are also
satisfied that there has been no illegality.
Both the appeals are, therefore,
dismissed.”
JUDGMENT
28
Page 28
17. In the case of M. Krishna v. State of Karnataka [(1999) 3
SCC 247], this Court took the view that even where the article
of charge was similar but for a different period, there was
nothing in the Code to debar registration of the second FIR. The
Court opined that the FIR was registered for an offence under
Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act
related to the period 1.8.1978 to 1.4.1989 and the investigation
culminated into filing of a report which was accepted by the
Court. The second FIR and subsequent proceedings related to a
st th
later period which was 1 August, 1978 to 25 July, 1978 under
similar charges. It was held that there was no provision which
debar the filing of a subsequent FIR.
18. In the case of T.T. Antony v. State of Kerala [(2001) 6 SCC
181], the Court explained that an information given under sub-
JUDGMENT
Section (1) of Section 154 of the Code is commonly known as
the First Information Report (FIR). Though this term is not used
in the Code, it is a very important document. The Court
concluded that second FIR for the same offence or occurrence
giving rise to one or more cognizable offences was not
permissible. In this case, the Court discussed the judgments in
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Page 29
Ram Lal Narang (supra) and M. Krishna (supra) in some detail,
and while quashing the subsequent FIR held as under :
“23. The right of the police to investigate
into a cognizable offence is a statutory right
over which the court does not possess any
supervisory jurisdiction under CrPC. In
Emperor v. Khwaja Nazir Ahmad the Privy
Council spelt out the power of the
investigation of the police, as follows:
“In India, as has been shown, there is
a statutory right on the part of the
police to investigate the
circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities,
and it would, as Their Lordships think,
be an unfortunate result if it should be
held possible to interfere with those
statutory rights by an exercise of the
inherent jurisdiction of the court.”
24. This plenary power of the police to
investigate a cognizable offence is,
however, not unlimited. It is subject to
certain well-recognised limitations. One of
them, is pointed out by the Privy Council,
thus:
JUDGMENT
“[I]f no cognizable offence is
disclosed, and still more if no offence
of any kind is disclosed, the police
would have no authority to undertake
an investigation….”
25. Where the police transgresses its
statutory power of investigation the High
Court under Section 482 CrPC or Articles
226/227 of the Constitution and this Court
in an appropriate case can interdict the
investigation to prevent abuse of the
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Page 30
process of the court or otherwise to secure
the ends of justice.
XXX XXX XXX
35. For the aforementioned reasons, the
registration of the second FIR under Section
154 CrPC on the basis of the letter of the
Director General of Police as Crime No. 268
of 1997 of Kuthuparamba Police Station is
not valid and consequently the
investigation made pursuant thereto is of
no legal consequence, they are accordingly
quashed. We hasten to add that this does
not preclude the investigating agency from
seeking leave of the Court in Crimes Nos.
353 and 354 of 1994 for making further
investigations and filing a further report or
reports under Section 173(8) CrPC before
the competent Magistrate in the said cases.
In this view of the matter, we are not
inclined to interfere with the judgment of
the High Court under challenge insofar as it
relates to quashing of Crime No. 268 of
1997 of Kuthuparamba Police Station
against the ASP (R.A. Chandrasekhar); in all
other aspects the impugned judgment of
the High Court shall stand set aside.”
JUDGMENT
19. The judgment of this Court in T.T. Antony (supra) came to
be further explained and clarified by a three Judge Bench of this
Court in the case of Upkar Singh v. Ved Prakash [(2004) 13 SCC
292], wherein the Court stated as under :
“17. It is clear from the words emphasised
hereinabove in the above quotation, this
Court in the case of T.T. Antony v. State of
Kerala has not excluded the registration of
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Page 31
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
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 162 of 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.
18. This Court in Kari Choudhary v. Sita
Devi discussing this aspect of law held:
“ 11 . Learned counsel adopted an
alternative contention that once the
proceedings initiated under FIR No.
135 ended in a final report the police
had no authority to register a second
FIR and number it as FIR No. 208. Of
course the legal position is that 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 on under both of them by the
same investigating agency . Even that
apart, the report submitted to the
court styling it as FIR No. 208 of 1998
need be considered as an information
submitted to the court regarding the
new discovery made by the police
during investigation that persons not
JUDGMENT
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Page 32
named in FIR No. 135 are the real
culprits. To quash the said
proceedings merely on the ground
that final report had been laid in FIR
No. 135 is, to say the least, too
technical. The ultimate object of every
investigation is to find out whether the
offences alleged have been committed
and, if so, who have committed it.”
(emphasis supplied)
XXX XXX XXX
23. Be that as it may, if the law laid down
by this Court in T.T. Antony case is to be
accepted as holding that 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 hereinbelow
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 book. This cannot be the purport of the
Code.
JUDGMENT
24. We have already noticed that in T.T.
Antony case this Court did not consider the
legal right of an aggrieved person to file
counterclaim, on the contrary from the
observations found in the said judgment it
clearly indicates that filing a counter-
complaint is permissible.
25. In the instant case, it is seen in regard
to the incident which took place on 20-5-
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Page 33
1995, the appellant and the first
respondent herein have lodged separate
complaints giving different versions but
while the complaint of the respondent was
registered by the police concerned, 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.”
20. Somewhat similar view was taken by a Bench of this Court
in the case of Rameshchandra Nandlal Parikh v. State of
Gujarat [(2006) 1 SCC 732], wherein the Court held that the
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subsequent FIRs cannot be prohibited on the ground that some
other FIR has been filed against the petitioner in respect of
other allegations filed against the petitioner.
21. This Court also had the occasion to deal with the situation
where the first FIR was a cryptic one and later on, upon receipt
of a proper information, another FIR came to be recorded which
was a detailed one. In this case, the court took the view that
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Page 34
no exception could be taken to the same being treated as an
FIR. In the case of Vikram v. State of Maharashtra (2007) 12
SCC 332, the Court held that it was not impermissible in law to
treat the subsequent information report as the First Information
Report and act thereupon. In the case of Tapinder Singh v.
State of Punjab [(1970) 2 SCC 113] also, this Court examined
the question as to whether cryptic, anonymous and oral
messages, which do not clearly specify the cognizable offence,
can be treated as FIR, and answered the question in the
negative.
22. In matters of complaints, the Court in the case of Shiv
Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed
the view that the law does not prohibit filing or entertaining of a
second complaint even on the same facts, provided that the
JUDGMENT
earlier complaint has been decided on the basis of insufficient
material or has been passed without understanding the nature
of the complaint or where the complete facts could not be
placed before the court and the applicant came to know of
certain facts after the disposal of the first complaint. The Court
applied the test of full consideration of the complaints on
merits. In paragraph 18, the Court held as under: -
35
Page 35
“18. Thus, it is evident that the law does not
prohibit filing or entertaining of the second
complaint even on the same facts provided the
earlier complaint has been decided on the basis
of insufficient material or the order has been
passed without understanding the nature of the
complaint or the complete facts could not be
placed before the court or where the
complainant came to know certain facts after
disposal of the first complaint which could have
tilted the balance in his favour. However, the
second complaint would not be maintainable
wherein the earlier complaint has been
disposed of on full consideration of the case of
the complainant on merit.”
23. 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
JUDGMENT
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
36
Page 36
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, whether 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
JUDGMENT
occurrences of the same incident etc.
24. 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 incidents were committed in close proximity of time, there
could be separate FIRs and institution of even one stating that
37
Page 37
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.
JUDGMENT
25. Now, we should examine the facts of the present case in
light of the principles stated supra. The complaint/application
under Section 156(3) filed by respondent No. 2 was founded on
the condolence meeting which was attended by a large number
of persons including the persons named in the complaint.
According to respondent No. 2, named persons had given
speeches which were communal, provoking and were creating
38
Page 38
disharmony between the communities, and encouraging people
to commit criminal offences rather than to follow the due
process of law. The complaint of respondent No. 2 did not
relate to any event prior to the holding of the meeting and
participation of the stated persons. This complaint was of a
general nature and related to various communal riots that
occurred subsequent to and as a result of the meeting. Thus, it
related to a different case, grievance and alleged commission
of offences at the time and subsequent to the holding of the
meeting.
26. 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
JUDGMENT
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
39
Page 39
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.
27. As per the FIR, it was an offence committed at random by
some unknown persons. The registration of such FIR was
neither intended to be nor was it in fact in relation to a matter
of larger investigation, or commission of offences, as alleged by
the respondent no.2.
28. 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
JUDGMENT
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 inter-dependent. They were
lodged by different persons in relation to occurrences which are
40
Page 40
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.
Is an accused entitled to hearing pre-registration of an
FIR?
29. Section 154 of the Code places an unequivocal duty upon
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the police officer in charge of a police station to register FIR
upon receipt of the information that a cognizable offence has
been committed. It hardly gives any discretion to the said
police officer. The genesis of this provision in our country in
this regard is that he must register the FIR and proceed with
the investigation forthwith. While the position of law cannot be
dispelled in view of the three Judge Bench Judgment of this
41
Page 41
Court in State of Uttar Pradesh v. Bhagwant Kishore Joshi [AIR
1964 SC 221], a limited discretion is vested in the investigating
officer to conduct a preliminary inquiry pre-registration of a FIR
as there is absence of any specific prohibition in the Code,
express or implied. The subsequent judgments of this Court
have clearly stated the proposition that such discretion hardly
exists. In fact the view taken is that he is duty bound to
register an FIR. Then the question that arises is whether a
suspect is entitled to any pre-registration hearing or any such
right is vested in the suspect.
30. The rule of audi alteram partem is subject to exceptions.
Such exceptions may be provided by law or by such necessary
implications where no other interpretation is possible. Thus
rule of natural justice has an application, both under the civil
JUDGMENT
and criminal jurisprudence. The laws like detention and others,
specifically provide for post-detention hearing and it is a settled
principle of law that application of this doctrine can be excluded
by exercise of legislative powers which shall withstand judicial
scrutiny. The purpose of the Criminal Procedure Code and the
Indian Penal Code is to effectively execute administration of the
criminal justice system and protect society from perpetrators of
42
Page 42
crime. It has a twin purpose; firstly to adequately punish the
offender in accordance with law and secondly to ensure
prevention of crime. On examination, the scheme of the
Criminal Procedure Code does not provide for any right of
hearing at the time of registration of the First Information
Report. As already noticed, the registration forthwith of a
cognizable offence is the statutory duty of a police officer in
charge of the police station. The very purpose of fair and just
investigation shall stand frustrated if pre-registration hearing is
required to be granted to a suspect. It is not that the liberty of
an individual is being taken away or is being adversely
affected, except by the due process of law. Where the Officer
In-charge of a police station is informed of a heinous or
cognizable offence, it will completely destroy the purpose of
proper and fair investigation if the suspect is required to be
JUDGMENT
granted a hearing at that stage and is not subjected to custody
in accordance with law. There would be the pre-dominant
possibility of a suspect escaping the process of law. The entire
scheme of the Code unambiguously supports the theory of
exclusion of audi alteram partem pre-registration of an FIR.
Upon registration of an FIR, a person is entitled to take
recourse to the various provisions of bail and anticipatory bail
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Page 43
to claim his liberty in accordance with law. It cannot be said to
be a violation of the principles of natural justice for two
different reasons. Firstly, the Code does not provide for any
such right at that stage. Secondly, the absence of such a
provision clearly demonstrates the legislative intent to the
contrary and thus necessarily implies exclusion of hearing at
that stage. This Court in the case of Union of India v. W.N.
Chadha (1993) Suppl. (4) SCC 260 clearly spelled out this
principle in paragraph 98 of the judgment that reads as under:
“98. If prior notice and an opportunity of
hearing are to be given to an accused in every
criminal case before taking any action against
him, such a procedure would frustrate the
proceedings, obstruct the taking of prompt
action as law demands, defeat the ends of
justice and make the provisions of law relating
to the investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant
statutory provisions relating to the procedure of
investigation does not attract such a course in
the absence of any statutory obligation to the
contrary.”
JUDGMENT
31. In the case of Samaj Parivartan Samuday v. State of
Karnataka (2012) 7 SCC 407, a three-Judge Bench of this Court
while dealing with the right of hearing to a person termed as
‘suspect’ or ‘likely offender’ in the report of the CEC
observed that there was no right of hearing. Though the
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Page 44
suspects were already interveners in the writ petition, they
were heard. Stating the law in regard to the right of hearing,
the Court held as under :
“50. There is no provision in CrPC where an
investigating agency must provide a hearing to
the affected party before registering an FIR or
even before carrying on investigation prior to
registration of case against the suspect. CBI, as
already noticed, may even conduct pre-
registration inquiry for which notice is not
contemplated under the provisions of the Code,
the Police Manual or even as per the
precedents laid down by this Court. It is only in
those cases where the Court directs initiation of
investigation by a specialised agency or
transfer investigation to such agency from
another agency that the Court may, in its
discretion, grant hearing to the suspect or
affected parties. However, that also is not an
absolute rule of law and is primarily a matter in
the judicial discretion of the Court. This
question is of no relevance to the present case
as we have already heard the interveners."
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32. While examining the above-stated principles in
conjunction with the scheme of the Code, particularly Section
154 and 156(3) of the Code, it is clear that the law does not
contemplate grant of any personal hearing to a suspect who
attains the status of an accused only when a case is registered
for committing a particular offence or the report under Section
173 of the Code is filed terming the suspect an accused that his
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rights are affected in terms of the Code. Absence of specific
provision requiring grant of hearing to a suspect and the fact
that the very purpose and object of fair investigation is bound
to be adversely affected if hearing is insisted upon at that
stage, clearly supports the view that hearing is not any right of
any suspect at that stage.
33. Even in the cases where report under Section 173(2) of
the Code is filed in the Court and investigation records the
name of a person in column (2), or even does not name the
person as an accused at all, the Court in exercise of its powers
vested under Section 319 can summon the person as an
accused and even at that stage of summoning, no hearing is
contemplated under the law.
34. Of course, situation will be different where the complaint
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or an application is directed against a particular person for
specific offence and the Court under Section 156 dismisses
such an application. In that case, the higher court may have to
grant hearing to the suspect before it directs registration of a
case against the suspect for a specific offence. We must
hasten to clarify that there is no absolute indefeasible right
vested in a suspect and this would have to be examined in the
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facts and circumstances of a given case. But one aspect is
clear that at the stage of registration of a FIR or passing a
direction under Section 156(3), the law does not contemplate
grant of any hearing to a suspect. Coming to the facts of the
present case, the complaint under Section 156 had named
certain persons, but it had also referred to a number of other
persons and the investigation prayed for was of a generic
nature and not against a particular person for commission of
any specified offence. The substance and nature of the
allegations made in the complaint were such that it was not
possible to state with certainty as to how the offences were
committed and by whom. Thus, the Court was called upon to
pass an order directing general investigation of very wide
scope. It was to be investigated, as to who besides the named
persons gave speeches, incited the public at large, what its
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impact was on the violence as alleged and who were the
persons who had participated in the alleged communal
violence. Thus, it was not a case where one or more persons
committed the murder of someone and clearly fell under
Section 302 IPC. The merit of the case was not disclosed by
th
the learned Magistrate while passing the order dated 29 July,
2008 under Section 156(3) of the Code. The Court did not
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analyze at all the ingredients of an offence, participation of
persons and their other effects. The court primarily proceeded
on a legal issue without reference to the facts of the case
stating that since one FIR had been recorded i.e. FIR No.
145/2007, it was not permissible to register second FIR and
direct investigation thereof. This view, as already discussed
above was, in fact and in law, not sustainable. The Court had
not recorded any finding in favour of the appellant to the effect
that she was not present, she had not participated or that she
was in no way connected with communal violence. We must not
be understood to state that the appellant was involved in any
manner in the commission of the said crime. This has to be
investigated as directed by the court in accordance with law
and that too without prejudice to the rights and contentions of
the appellant. The grievance of non-grant of hearing in any
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case loses its significance as we have heard the appellant at
some length and have dealt with the contentions raised before
us. In the facts of the present case, thus, no prejudice is
caused to the appellant.
Power of the Magistrate under Section 156(3)
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35. Investigation into commission of a crime can be
commenced by two different modes. First, where the police
officer registers an FIR in relation to commission of a cognizable
offence and commences investigation in terms of Chapter XII of
the Code, the other is when a Magistrate competent to take
cognizance in terms of Section 190 may order an investigation
into commission of a crime as per the provisions of that Chapter
XIV. Section 156 primarily deals with the powers of a police
office to investigate a cognizable case. While dealing with the
application or passing an order under Section 156(3), the
Magistrate does not take cognizance of an offence. When the
Magistrate had applied his mind only for order an investigation
under Section 156(3) of the Code or issued a warrant for the
said purpose, he is not said to have taken cognizance. It is an
order in the nature of a preemptory reminder or intimation to
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the police to exercise its primary duty and power of
investigation in terms of Section 151 of the Code. Such an
investigation embraces the continuity of the process which
begins with collection of evidence under Section 156 and ends
with the final report either under Section 159 or submission of
chargesheet under Section 173 of the Code. Refer Mona Pawar
v. High Court of Allahabad [2011) 3 SCC 496]. In the case of
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Dilawar Singh v. State of Delhi [2007) 9 SCR 695], this Court as
well stated the principle that investigation begin in furtherance
to an order under Section 156(3) is not anyway different from
the kind of investigation commenced in terms of Section 156(1).
They both terminate with filing of a report under Section 173 of
the Code. The Court signified the point that when a Magistrate
orders investigation under Chapter XII he does so before taking
cognizance of an offence. The court in paragraph 17 of the
judgment held as under:-
“The clear position therefore is that any
Judicial Magistrate, before taking
cognizance of the offence, can order
investigation under Section 156(3) of the
Code. If he does so, he is not to examine
the complainant on oath because he was
not taking cognizance of any offence
therein. For the purpose of enabling the
police to start investigation it is open to the
Magistrate to direct the police to register an
FIR. There is nothing illegal in doing so.
After all registration of an FIR involves only
the process of entering the substance of
the information relating to the commission
of the cognizable offence in a book kept by
the officer in charge of the police station as
indicated in Section 154 of the Code. Even
if a Magistrate does not say in so many
words while directing investigation under
Section 156(3) of the Code that an FIR
should be registered, it is the duty of the
officer in charge of the police station to
register the FIR regarding the cognizable
offence disclosed by the complainant
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because that police officer could take
further steps contemplated in Chapter XII of
the Code only thereafter.”
36. Caution in this process had been introduced by this Court
vide its judgment in the case of Tula Ram & Ors. v. Kishore
Singh [1977) 4 SCC 459] where it was held that the Magistrate
can order the police to investigate the complaint, but it has no
power to compel the police to submit a charge sheet on a final
report being submitted by the police.
37. Still another situation that can possibly arise is that the
Magistrate is competent to treat even a complaint termed as an
application and pass orders under Section 156(3), but where it
takes cognizance, there it would have to be treated as a regular
complaint to be tried in accordance with the provisions of
Section 200 onwards falling under Chapter XV of the Code.
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There also the Magistrate is vested with the power to direct
investigation to be made by a police officer or by such other
person as he thinks fit for the purposes of deciding whether or
not there is sufficient ground for proceeding. This power is
restricted and is not as wide as the power vested under Section
156(3) of the Code. The power of the Magistrate under Section
156(3) of the Code to order investigation by the police have not
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been touched or affected by Section 202 because these powers
are exercised even before the cognizance is taken. In other
words, Section 202 would apply only to cases where Magistrate
has taken cognizance and chooses to enquire into the
complaint either himself or through any other agency. But
there may be circumstances where the Magistrate, before
taking cognizance of the case himself, chooses to order a pure
and simple investigation under Section 156(3) of the Code.
These cases would fall in different class. This view was also
taken by a Bench of this Court in the case of Rameshbhai
Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185]. The
distinction between these two powers had also been finally
stated in the judgment of this Court in the case of Srinivas
Gundluri & Ors. v. SEPCO Electric Power Construction
Corporation & Ors. [(2010) 8 SCC 206] where the Court stated
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that to proceed under Section 156(3) of the Code, what is
required is a bare reading of the complaint and if it discloses a
cognizable offence, then the Magistrate instead of applying his
mind to the complaint for deciding whether or not there is
sufficient ground for proceeding, may direct the police for
investigation. But where it takes cognizance and decides as to
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whether or not there exists a ground for proceeding any further,
then it is a case squarely falling under Chapter XV of the Code.
38. Thus, the Magistrate exercises a very limited power under
Section 156(3) and so is its discretion. It does not travel into
the arena of merit of the case if such case was fit to proceed
further. This distinction has to be kept in mind by the court in
different kinds of cases. In the present case, the learned
th
Magistrate while passing the order dated 29 July, 2008, had
not dealt with the case on merits, but on a legal assumption
that it was not a case to direct investigation because
investigation was already going on under FIR No. 45/2007.
Once it is held as done by us above, there were two different
and distinct offences committed by different persons and there
was no commonality of transaction between the two. We do
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not find any error of jurisdiction in the order of the High Court
requiring the learned Magistrate to deal with the cases afresh
and pass an order under Section 156(3) of the Code. Once,
that view is taken, the direction passed by the learned
Magistrate directing further investigation under Section 156(3)
can also not be complied with though there is no specific
challenge to that order before us.
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39. Thus, we are called upon to deal with from the point of
view as to whether the investigating agency should be
restrained from conducting further investigation or there should
be stay of such investigation.
40. It is true that law recognizes common trial or a common
FIR being registered for one series of acts so connected
together as to form the same transaction as contemplated
under Section 220 of the Code. There cannot be any straight
jacket formula, but this question has to be answered on the
facts of each case. This Court in the case of Mohan Baitha v.
State of Bihar [(2001) 4 SCC 350], held that the expression
‘same transaction’ from its very nature is incapable of exact
definition. It is not intended to be interpreted in any artificial
or technical sense. Common sense in the ordinary use of
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language must decide whether or not in the very facts of a
case, it can be held to be one transaction.
41. 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
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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.
42. 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
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those persons involved can be accused of the same or different
offences “committed in the course of the same transaction”.
43. For the reasons afore-stated, we find no jurisdictional or
other error in the judgment of the High Court and that leads us
to direct the dismissal of this appeal.
.…................................J.
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[Swatanter Kumar]
.…................................J.
[Madan B. Lokur]
New Delhi
December 13, 2012
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