Md. Sagir & Anr. vs The State Of Bihar & Anr.

Heard the parties.

The present application has been preferred for quashing of the order dated 19.01.2006, passed by the learned CJM, Saharsa in Salakhua P.S. Case No.92/2003, whereby cognizance has been taken for the offences punishable under Sections 341, 447, 323, 379 and 34 of the Indian Penal Code. The petitioners have also challenged the order dated 28.01.2003, passed in Salakhua P.S. Case No.49/2002, whereby cognizance has been taken for the offences punishable under Sections 341, 323 and 448 of the Indian Penal Code.

The prosecution story, in brief, is that O.P. No.2, namely, Md. Mohasin, instituted Complaint Case No.312(C)/2002 before the learned Chief Judicial Magistrate, Saharsa on 27.05.2002. It was alleged therein that on 24.05.2002, while the complainant was present in his house along with his mother, about 8-10 persons entered into his house and attempted to apprehend him. It has further been alleged that when the complainant tried to flee, accused Md. Sagir showed a country-made pistol and threatened him that if he attempted to flee, he would be shot.

It was further alleged in the complaint that the accused persons surrounded the complainant and demanded rangdari for three months. It is alleged that accused Md. Manir slapped the complainant and threatened him with dire consequences. It was further alleged that accused Md. Sagir touched the pistol against the chest of the complainant and that his mother cried and requested the accused persons not to kill her son. It has also been alleged that accused Md. Jamal took away Rs. 2,000/- from the pocket of the complainant and also took away silver articles worth Rs.1,000/-. The allegation further proceeds that a briefcase was also taken away.

On the basis of the aforesaid complaint, the matter was directed to be investigated and consequently Salakhua P.S. Case No.49/2002 came to be registered on 13.06.2002 for the offences under Sections 341, 451, 379, 387 and 323 of the Indian Penal Code against the accused persons including the present petitioners.

It appears from the materials on record that the Investigating Officer, after investigation in Salakhua P.S. Case No.49 of 2002, submitted final form on 09.09.2002 against three accused persons, namely, Md. Manir, Md. Sagir and Md. Jamal. The learned Magistrate thereafter proceeded with the said case and cognizance was taken on 28.01.2003 for the offences under Sections 341, 323 and 448 of the Indian Penal Code, corresponding to G.R. Case No.479 of 2002.

In the meantime, the very same complaint case i.e., Complaint Case No.312(C) of 2002, gave rise to another police case. It appears that on the direction of this Court, Salakhua P.S. Case No.92/2003 was registered on 07.10.2003 against the accused persons including the present petitioners in respect of the allegations which are substantially the same as those forming the basis of the earlier criminal case.

In Salakhua P.S. Case No.92/2003, the Investigating Officer submitted final form on 16.01.2006 for the offences under Sections 341, 447, 323, 379 and 34 of the IPC, whereafter the learned CJM, Saharsa, by order dated 19.01.2006, took cognizance of the aforesaid offences against the accused persons, giving rise to G.R. Case No.819 of 2003.

Thus, the material facts which require consideration are not in much dispute. The complaint in question is the same; the complainant is the same; the occurrence alleged is the same; the accused persons are substantially the same and the allegations forming the foundation of the subsequent police case arise out of the very same transaction which had already been made the subject matter of investigation in Salakhua P.S. Case No.49 of 2002.

Learned counsel appearing for the petitioners, at the outset, submits that so far as Salakhua P.S. Case No. 49/2002 is concerned, petitioners do not wish to press the present application at this stage. It is submitted that the petitioners may be permitted to withdraw the challenge to the said proceeding with liberty to raise all the grounds available to them before the learned Trial Court at the appropriate stage.

The prayer made on behalf of the petitioners, to the aforesaid extent, appears to be reasonable. Accordingly, the challenge to Salakhua P.S. Case No. 49/2002, corresponding to G.R. Case No.479 of 2002, is permitted to be withdrawn with liberty to the petitioners to raise all such grounds as may be available to them in law at the appropriate stage before the learned Trial Court. This Court, therefore, consciously refrains from examining the merits or otherwise of the said proceeding.

The controversy which survives for consideration is, therefore, confined to the subsequent Salakhua P.S. Case No.92/2003, corresponding to G.R. Case No.819 of 2003, and the order of cognizance dated 19.01.2006 passed therein.

Learned counsel for the petitioners submits that registration of the subsequent FIR is wholly impermissible in law, as the same complaint and the same occurrence had already resulted in registration and investigation of Salakhua P.S. Case No.49/2002. It is submitted that merely because the Investigating Officer had earlier submitted final form, a fresh FIR could not have been registered on the same factual foundation. At best, the procedure contemplated under Section 173(8) of the Code of Criminal Procedure could have been resorted, in accordance with law.

Learned counsel further submits that the subsequent FIR does not disclose any fresh occurrence, independent transaction or counter-version of the occurrence. The allegations in both the proceedings substantially overlap and the substratum of the two cases is the same. Thus, permitting the subsequent FIR to continue would amount to subjecting the petitioners to a second investigation and prosecution arising from the same occurrence.

Learned APP, however, has opposed the application and submitted that the subsequent investigation was conducted pursuant to the direction of the competent Court and that the learned Magistrate, after considering the final form submitted by the Investigating Officer, has taken cognizance. It is, therefore, submitted that no interference is warranted at this stage.

I have considered the rival submissions and perused the materials available on record.

The issue involved in the present case is not whether the allegations made against the petitioners are ultimately true or false. The issue is narrower, but fundamental, namely, whether after registration and investigation of the first FIR arising out of the same complaint and occurrence, a second FIR could have been registered on the same factual foundation against the same accused persons.

The law on the subject is no longer res integra. The Hon'ble Supreme Court in T.T. Antony Vs. State of Kerala & Ors., [(2001) 6 SCC 181], while examining the scheme of Sections 154, 156, 157, 162, 169, 170 and 173 of the Code of Criminal Procedure, held that only the earliest information relating to the commission of a cognizable offence satisfies the requirement of an FIR. In paragraph 20, the Hon'ble Supreme Court categorically held that there can be no second FIR and no fresh investigation on receipt of subsequent information relating to the same cognizable offence or the same occurrence. The Court further explained that the connected offences forming part of the same transaction are required to be investigated in the first case.

The Hon'ble Supreme Court in T.T. Antony Case (supra) further held in paragraph 27 that although Section 173(8) of the Code permits further investigation and submission of a further report, the sweeping power of investigation cannot be utilized to subject a citizen to fresh investigation in respect of the same incident through successive FIRs. Such a course would fall beyond the purview of Sections 154 and 156 of the Code and may constitute an abuse of the statutory power of investigation.

The principle was considered and explained in greater detail by the Hon'ble Supreme Court in Babubhai Vs. State of Gujarat & Ors., (2010) 12 SCC 254. In paragraph 17, the Court reiterated that where more than one piece of information is received in respect of the same incident, the subsequent information cannot ordinarily be treated as a fresh FIR. The Court laid down the test of sameness, requiring the Court to examine whether both FIRs relate to the same incident, occurrence or incidents forming parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed.

The Hon'ble Supreme Court in paragraph 17 of Babubhai Case (supra) has also clarified the permissible exception. Where the subsequent FIR relates to a genuinely different incident or represents a different version in the nature of a counter-case, the same may stand on a different footing. However, the prohibition operates where the subsequent FIR is merely another proceeding concerning the same occurrence and the same transaction.

The aforesaid principle has thereafter been reiterated by the Hon'ble Supreme Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., [(2013) 6 SCC 348]. In paragraph 32, the Court reiterated that registration of a second FIR in respect of an offence or different offences committed in the course of the same transaction is impermissible and that such registration, when it is not a cross-case, is violative of Article 21 of the Constitution.

Significantly, in Amitbhai Anilchandra Shah Case (supra), paragraph 52, the Hon'ble Supreme Court once again summarized the legal position and held that there can be no second FIR in respect of the same offence/event and that where the subsequent information relates to the same transaction, the proper course is further investigation and a further report under Section 173(8) of the Code, and not registration of a fresh FIR.

The aforesaid judgments make one aspect abundantly clear. The nomenclature of the offences in the two FIRs is not decisive. What is required to be examined is the factual foundation and the substratum of the allegations. Merely adding or altering penal sections in the subsequent FIR cannot convert one and the same occurrence into a fresh and independent transaction.

In the present case, applying the aforesaid test, this Court finds that the subsequent Salakhua P.S. Case No.92 of 2003 cannot be regarded as an independent occurrence. The genesis of the subsequent proceeding is the same Complaint Case No.312(C) of 2002 filed by the same complainant. The allegations regarding the entry of the accused persons into the house, attempt to apprehend the complainant, threatening him with a pistol, demand of rangdari tax, assault and taking away of money and articles constitute the same factual substratum.

It is also of considerable significance that prior to registration of the subsequent FIR, the very same allegations had already resulted in registration of Salakhua P.S. Case No.49 of 2002. Investigation had been undertaken in that case and a final form had also been submitted. Thus, the investigating machinery had already been set into motion with respect to the occurrence in question.

The subsequent registration of Salakhua P.S. Case No.92 of 2003, therefore, cannot be justified merely on the ground that a different set of penal provisions came to be mentioned therein. The substance of the accusation and the occurrence remains the same. The law does not permit the same occurrence to be subjected to successive FIRs merely by giving a different description to the offences.

It is true that the power of further investigation is preserved even after submission of a police report. However, such further investigation has to be carried out in the manner known to law. As noticed by the Hon'ble Supreme Court in the legal reports of T.T. Antony and Amitbhai Anilchandra Shah Case, the course contemplated by Section 173(8) of the Code is available where further material comes to light. What is not permissible is to convert such further information into a new FIR and thereby commence a fresh investigation in respect of the same occurrence.

In the present case, there is yet another aspect which cannot be ignored. The subsequent FIR does not appear to be a counter-case lodged by the accused against the informant, nor does it represent a rival version of a distinct occurrence. Rather, it is based upon the same complaint and the same allegations which had already formed the subject matter of the earlier police case. Therefore, the exception recognized in cases of cross-version or counter-case has no application here.

The distinction between a second FIR relating to the same transaction and a genuinely distinct FIR is important. The former is prohibited; the latter may be permissible. As held in Babubhai Case (supra), the Court has to apply the test of sameness. On the facts available in the present matter, the test clearly stands satisfied. The second FIR is not founded upon a different occurrence but upon the very same occurrence which had already been investigated in the earlier case.

The registration of a second FIR in such circumstances also raises a concern touching upon the fairness of criminal investigation. An accused cannot be subjected repeatedly to the investigation and prosecution machinery merely because the investigating agency or the complainant seeks to improve upon or give another form to the allegations already placed before the police. The criminal process cannot be permitted to become a means of repeated harassment.

The principle is ultimately founded upon the requirement of fairness embodied in the constitutional protection under Article 21. The Hon'ble Supreme Court in Amitbhai Anilchandra Shah Case (supra) has expressly observed that registration of a second FIR, when it concerns the same transaction and is not a cross-case, violates Article 21 of the Constitution.

In the facts of the present case, therefore, this Court is of the considered view that the subsequent Salakhua P.S. Case No.92 of 2003 is nothing but a second FIR arising out of the same complaint, same occurrence and same transaction which had already resulted in registration of Salakhua P.S. Case No.49 of 2002. The subsequent proceeding, therefore, cannot be permitted to continue.

It is made clear that this Court has deliberately not examined the merits of the allegations forming part of Salakhua P.S. Case No.49 of 2002. The learned counsel for the petitioners having sought withdrawal of the challenge to the said proceeding with liberty, the petitioners shall remain at liberty to raise all grounds available to them in law at the appropriate stage before the learned Court below. Any observation made herein is confined to the legality of the subsequent FIR i.e., Salakhua P.S. Case No. 92/2003 and shall be of no bearing to first FIR i.e., Salakhua P.S. Case No. 49/2002.

Consequently, Salakhua P.S. Case No.92 of 2003, corresponding to G.R. Case No.819 of 2003, and all consequential proceedings arising therefrom, including the order dated 19.01.2006 passed by the learned Chief Judicial Magistrate, Saharsa taking cognizance for the offences under Sections 341, 447, 323, 379 and 34 of the Indian Penal Code, are hereby quashed and set aside, so far as the present petitioners are concerned.

So far as Salakhua P.S. Case No.49 of 2002, corresponding to G.R. Case No.479 of 2002, is concerned, the challenge thereto is permitted to be withdrawn with liberty to the petitioners to raise all available grounds at the appropriate stage/framing of charge before the learned Trial Court.

The application stands allowed in the aforesaid terms.