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Allahabad High Court · body

2004 DIGILAW 1220 (ALL)

Naushad v. State of U. P.

2004-07-07

K.N.OJHA

body2004
( 1 ) INSTANT revision has been preferred against order dated 10th May, 2001 passed by learned Sessions Judge, Bulandshahr in Criminal Revision No. 230/01 mohd. Aslam v. State of U. P. by which the revision filed by respondent No. 2 Mohd. Aslam was allowed and the Magistrate concerned was directed to pass appropriate orders with regard to investigation of the version of the revisionist by some senior Officer of the Police not below the rank of deputy Suptt. of Police. It was also directed that the same officer would investigate the matter with effect from initial stage ignoring the investigation already done. This revision was preferred against order dated 9-2-2001 by which the then Chief Judicial magistrate, Bulandshahar had rejected the application of Mohd. Aslam, respondent No. 2 moved under Section 156 (3) of the Code of Criminal Procedure. ( 2 ) IN the instant revision, earlier argument of Shri Sunil Kumar, learned counsel for the revisionists and learned AGA was heard and the case was listed for rest arguments but none appeared for the revisionist on adjourned date. Hence rest argument of learned AGA was heard and judgment is being delivered. ( 3 ) THE fact of the case is that one mumtaz, revisionist No. 3 lodged an F. I. R. against Hasim, Teja and Sajan on 31-1-2001 at 8. 30 a. m. bearing Case Crime No. 47/2001 under Sections 459 and 380, IPC at p. S. Sikandarabad containing the fact that in the night of 30/31st January, 2001, he along with his family members was sleeping inside his house. He woke-up on some sound at about 3. 30 a. m. and saw three miscreants present in his house who were taking away clothes, ornaments and cash. On alarm raised by him and his family members, persons of the locality assembled, apprehended two miscreants who told themselves to be Hasim and Teja. The miscreant who was successful in making his escape good was Sahajad alias Shanker. He ran away along with ornaments, cash and clothes. After the F. I. R. was lodged, statements of witnesses Shakeel, Jafir, Bhujahid, swalim, Smt. Harhat Jaham, Smt. Nizima aqueel Ahmad, Mukhliar Ahmad and kausheep were recorded. The miscreants hasim and Teja were beaten by mob. They were carried to the hospital where they died. He ran away along with ornaments, cash and clothes. After the F. I. R. was lodged, statements of witnesses Shakeel, Jafir, Bhujahid, swalim, Smt. Harhat Jaham, Smt. Nizima aqueel Ahmad, Mukhliar Ahmad and kausheep were recorded. The miscreants hasim and Teja were beaten by mob. They were carried to the hospital where they died. After investigation, the investigating officer arrived at the conclusion that while committing theft abovementioned two persons were arrested on the spot, beaten by the mob, as a result of which they died and the case proceeded against Shahjad under sections 459 and 380, I. P. C. Later on one mohd. Aslam moved an application against naushad, Saleem and Mumtaz under Section 156 (3) of Criminal Procedure Code on 1st February, 2001 that in the night of 30th january, 2001, he along with his younger brother Hanif and one another were going back after attending picture, Naushad, saleem and Mumtaz met on the way, carried his brother to his house and beat him and, thereafter, carried him to District Hospital, Bulandshahar, where he was declared dead. This application moved under Section 156 (3), Cr. P. C. was rejected by the Chief judicial Magistrate on the ground that in view of (1990) All WC 433 : (1990 All LJ 359), ram Mohan Garg v. State of U. P. , second f. I. R. could not be lodged. When revision was preferred, impugned order was passed. Hence instant revision has been preferred before this Court. ( 4 ) IN this case, even though the learned sessions Judge did not direct to lodge second F. I. R. , but directed that some senior officer of the police, not below the rank of deputy Superintendent of Police has to investigate the case with initial stage ignoring the investigation, already done by the Police Officer. ( 5 ) IT has been held by this Court in Ram mohan Gargs case cited above, that registration of second F. I. R. of cross case is not permissible after the investigation in respect of crime has commenced in view of the provisions of Section 162, Cr. ( 5 ) IT has been held by this Court in Ram mohan Gargs case cited above, that registration of second F. I. R. of cross case is not permissible after the investigation in respect of crime has commenced in view of the provisions of Section 162, Cr. P. C. , however, it was always possible that during the investigation of crime, version set-up in the F. I. R. may be found to be a false version and some other version may be found correct and persons other than mentioned in the FIR may be charge-sheeted after fair investigation. Hence it was not necessary that fresh F. I. R. should have been registered. ( 6 ) SO far lodging second F. I. R. is concerned, the law does not permit it. In 1997 cri LJ 813, Ashwini Kumar v. State of rajasthan, it has been held by Honble High court of Rajasthan that second F. I. R. on the same fact as given in earlier F. I. R. was not permissible though police has a right to conduct further investigation and submit report about commission of alleged crime. ( 7 ) IN AIR 2001 SC 2637 : (2001 Cri LJ 3329), T. T. Antony v. State of Kerala, it has been held by Honble the Apex Court that :- "apart from a vague information by a phone call or Cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First information Report - F. I. R. postulated by section 154 of Cr. P. C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police Officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162, Cr. P. C. No such information/statement can properly be treated as an F. I. R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. The scheme of the Cr. P. C. No such information/statement can properly be treated as an F. I. R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. The scheme of the Cr. P. C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr. P. C. on the basis of entry of the first Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected, he has to form opinion under Section 169 or 170, Cr. P. C. as the case may be, and forward his report to the concerned Magistrate under Section 173 (2) of Cr. P. C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8)of Section 173, Cr. P. C. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr. P. C. Only the earlier or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, cr. P. C. , thus there can be no second F. I. R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence, or incident giving rise to one or more cognizable offence. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F. I. R. in the station house diary, the officer in charge of a Police station has to investigate not merely the cognizable report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the cr. P. C. If the gravamen of the charges in the two firs - the first and the second - is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under Section 173, cr. P. C. will be irregular and the Court cannot take cognizance of the same. A just balance between the fundamental rights of the citizens and Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173, Cr. P. C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173 (2), cr. P. C. It would clearly be beyond the purview of Sections 154 and 156, Cr. P. C. a case of abuse of the statutory power of investigation in a given case. A case of a fresh investigation based on the second or successive firs, not being a counter case filed, in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first fir either investigation is underway or final report under Section 173 (2) has been forwarded to the Magistrate, may be a fit case of exercise of power under Section 482, Cr. P. C. or under Article 226/227 of the Constitution. (Para 27 ). " ( 8 ) THUS, it has been made clear by the apex Court that neither second FIR can be lodged in respect of same facts of occurrence nor fresh investigation can be started at initial stage. However, further investigation, normally with the leave of the Court, can be made. Section 173 (8) of Criminal Procedure code is clear that if there is some other version or evidence of oral or documentary, the same may be forwarded with one or more further reports. However, further investigation, normally with the leave of the Court, can be made. Section 173 (8) of Criminal Procedure code is clear that if there is some other version or evidence of oral or documentary, the same may be forwarded with one or more further reports. It has been made clear by honble the Supreme Court in T. T. Antonys case that second FIR or fresh investigation will be irregular. Therefore, the instant revision deserves to be partly allowed. ( 9 ) THE revision is partly allowed and it is directed that the investigating officer will collect additional evidence as furnished by the parties and will submit additional report but investigation will not be started afresh. The direction made by learned Sessions Judge for investigation being made by senior Police Officer not below the rank of deputy Superintendent of Police is also set aside, as it is at the discretion of the Superintendent of Police or Sr. Superintendent of police, whosoever may be head of the police administration of District Bulandshahar, to direct as by whom further investigation is to be conducted. The revision is allowed partly accordingly. Revision partly allowed. . .