Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 340 (ORI)

Sitansu Shekhar Choudhury v. State of Orissa

2005-05-20

I.M.QUDDUSI

body2005
JUDGMENT I. M. QUDDUSI, J. — This petition under Section 482 Criminal Procedure Code (for short the “Cr.P.C.”) has been filed alleging abuse of process of Court as two FIRs have been lodged in differ¬ent police stations against the petitioner in connection with the same set of facts and incident and against filing of charge sheet in Court. 2. The brief facts of the case are that on 10.10.2002 the Under Secretary to Govt. of Orissa in Food and Civil Supplies Department, Orissa lodged a written FIR which was registered as Capital P.S.Case No. 462 of 2000 corresponding to G.R.Case No. 3254 of 2002 pending in the Court of the learned S.D.J.M., Bhuba¬neswar for the offences punishable under Sections 468/471/34, IPC. Another FIR was also registered at Nayagarh P.S.on 16.7.2003 under Sections 420/468/471, IPC corresponding to G.R.Case No. 330 of 2003 pending in the Court of the learned S.D.J.M., Nayagarh. The said FIR was lodged by the D.C.A.-cum-Joint Secretary, Food Supplies and Consumer Welfare Department, Govt. of Orissa on the same incident. The police filed charge sheet in both the cases and investigated the same separately. In both the FIRs the alle¬gation was that letter No. 5712 dated 6.3.2002 which was numbered by the petitioner, was a forged one. 3. In Section 154, Cr.P.C. it has been provided that every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a Police Station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Once the information has been given to the Officer-in-Charge of the Police Station concerned for commission of cognizable offence of an incident which has been reduced to writing and a case has been registered on the basis of the information, the same would be the first information and the report will be called as the First Information Report and as such any information given to the Officer-in-Charge of the Police Station subsequently cannot be termed as First Information Report as there cannot be two First Information Reports for the same incident. 4. 4. In the case of T.T.Antony v. State of Kerala reported in 2001 Cri.L.J. 3329, the Apex Court has held as follows : “An information given under Sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (FIR) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence re¬corded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the inves¬tigation which ends up with the formation of opinion under Sec¬tions 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. 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 - FIR postulated by Section 154 of Cr.P.C. All other infor¬mation 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 investi¬gation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an FIR 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. Take a case where an FIR mentions cognizable offence under Sections 307 or 326, IPC and the inves¬tigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Sec¬tion 302, IPC need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H. having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during inves¬tigation the truth is detected; it does not require filing of fresh FIR against H the real offender - who can be arraigned in the report under Section 173(2) or 173 (8) of Cr.P.C. as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Sections 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 Sections 169 or 170 of 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 regis¬ter 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.” The Hon’ble Apex Court further in the aforesaid case has held as under : “A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the Police to investigate a cognizable of¬fence has to be struck by the Court. There cannot be any contro¬versy 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. In Narang’s case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156, Cr.P.C. may, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh inves¬tigation 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 for exercise of power under Section 482, Cr.P.C. or under Articles 226/227 of the Constitution. xxx xxx xxx The correct course of action should have been to take note of the findings and the contents of the report, streamline the investigation to ascertain the true and correct facts, col¬lect the evidence in support thereof form an opinion under Sec¬tions 169 and 170, Cr.P.C. as the case may be, and forward the report/reports under Section 173(2) or Section 173 (8), Cr.P.C. to the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investi¬gating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.” 5. In view of the above mentioned facts and circumstances, this Court has come to the conclusion that both the above men¬tioned cases, i.e. G.R. case Nos. 3254 of 2002 and 330 of 2003 should be dealt with by one Court and after perusing the charge-sheet in both the cases, the learned Court concerned should pass appropriate orders in the light of the observation made above. 6. 3254 of 2002 and 330 of 2003 should be dealt with by one Court and after perusing the charge-sheet in both the cases, the learned Court concerned should pass appropriate orders in the light of the observation made above. 6. Since the first case was registered in the matter in question on 10.10.2002 at Capital P.S.and charge-sheet has been filed before the S.D.J.M., Nayagarh as the FIR corresponding to G.R.Case No. 330 of 2003 was filed later on at Nayagarh Police Station, therefore, it is directed that G.R.Case No. 330 of 2003 arising out of Nayagarh P.S.Case No. 163 of 2003 pending before the learned S.D.J.M., Nayagarh should be transferred to the Court of learned S.D.J.M., Bhubaneswar. 7. In view of the above mentioned facts and circumstances, this petition is disposed of with the direction that G.R.Case No. 330 of 2003 pending before the learned S.D.J.M., Nayagarh be transferred to the Court of learned S.D.J.M., Bhubaneswar. Both the cases, i.e. G.R.Case No. 3254 of 2002 and G.R.Case No. 330 of 2003 shall be taken together and after perusing the facts and circumstances mentioned in the FIRs and the charge-sheet, appropriate order in both the cases shall be passed thereon by the learned Magistrate in the light of the observation made above. It is also provided that in case the petitioner has already been granted bail in any of the above cases, he shall not be required to surrender or apply for bail and shall also not be arrested unless specifically directed by the learned S.D.J.M., Bhubaneswar after perusing both the FIRs and the charge-sheet. Petition disposed of.