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2009 DIGILAW 442 (PAT)

Jokhu Singh v. State Of Bihar

2009-03-20

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner is aggrieved by the order of cognizance dated 16.6.2006 in Chausa P.S. Case No. 73/1998/G.R. No. 73/1998 registered under Section 304 of the Penal Code pending before the Judicial Magistrate, 1st Class, Madhepura. 3. Learned Counsel submits that Chausa P.S. Case No. 6/1995 came to be lodged on 19.1.1995 by the petitioner under Section 304 of the Penal Code. The petitioner went to arrest a person against whom there were warrants of arrest. An altercation ensued at the time of arrest when the villagers also chased the absconder who was frail suffering from tuberculosis and leading to his death. Final Report then came to be submitted against unknown in the light of the Post Mortem Report. The deceased was an absconder in several cases details whereof are mentioned in Para 18(i) to (ix). The final report came to be accepted by the court below and the matter was closed. 4. For the very same occurrence Chausa P.S. Case No. 73/1998 then came to be registered on 29.8.1998 by the CID on the allegation that during investigation it had transpired that it could not be established that the deceased was suffering from tuberculosis or that he was assaulted by unknown villagers at the time of arrest. On the contrary certain witnesses had stated that the deceased died on account of assault by the petitioner. 5. Learned Counsel for the petitioner has centered his entire argument on the judgment of the Supreme Court reported in 2001 (2) PCCR 414 corresponding to (2001 )6 SCC 181, (T.T. Anthony V/s. State of Kerala & Ors). The submission is that in the police case lodged by him after investigation final form came to be submitted and accepted by the court below, Once the final form was submitted and accepted the question of further investigation under Section 173(8) Cr.P.C. did not arise as the stage for the same had been crossed. If any materials had transpired to falsify Chausa P.S. Case No. 6/1995. it was for the police to submit an appropriate charge-sheet in the same itself. The second F!R for the same offence was therefore not sustainable in the eye of law. 6. If any materials had transpired to falsify Chausa P.S. Case No. 6/1995. it was for the police to submit an appropriate charge-sheet in the same itself. The second F!R for the same offence was therefore not sustainable in the eye of law. 6. Counsel for the State urged that how the deceased died, whether it was a natural death or he was killed are matters which shall surface during trial itself and that the Court should refrain from interfering at this initial stage. Chausa P.S. Case No. 73/1998 came to be lodged when fresh materials have transpired as distinct from the materials discovered in Chausa P.S. Case No. 6/1995. 7. in the case of T.T. Anthony (supra) relied upon by the petitioner, the incident took place the same day at two locations. Two police cases came to be registered with regard to the occurrence. One occurrence was in the proximity of the Town Hall and the other was in the vicinity of the Police Station. Simultaneously on a public uproar a judicial enquiry was set up headed by the District and Sessions Judge under the Commission of Enquiry Act. The report of the Enquiry Commission was forwarded to the Director General of Police for taking action on basis of the findings of the Commission. Directions were issued to the Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a Senior Police Officer. A police, Crime No. 268/97 case then came to be registered under Section 302 of the Penal Code against certain officials who were alleged to have ordered firing leading to the registration of former two FIRs. The first two FIRs with regard to the occurrence at the Town Hall and another near the Police Station were registered as Crime Nos. 353/1994 and 354/1994, mainly against the workers and the youth wing of the political party concerned. Both these cases came to be closed as being false and undetected. The Police officials who were made accused in the subsequent FIR based on the report of the Enquiry Commission registered as Crime No. 268/1997 came to the High Court questioning the FIR against them. The High Court opined that instead of quashing the FIR at the initial stage the matter be investigated by the C8I. The Police officials who were made accused in the subsequent FIR based on the report of the Enquiry Commission registered as Crime No. 268/1997 came to the High Court questioning the FIR against them. The High Court opined that instead of quashing the FIR at the initial stage the matter be investigated by the C8I. The Division Bench directed quashing of the FIR for Crime No. 268/1997 with regard to the Superintendent of Police but directed a fresh investigation by the Police by certain named Police officers instead of the CBI. The other policemen accused in Crime No. 268/1997 moved the Apex Court against the order. The Supreme Court at Para 14 of the judgment framed the question as relevant for the present decision as follows: "(i) Whether registration of a fresh case, Crime No. 268/97, Kuthuparamba Police Station on the basis of the letter of the DGP dated July 2, 1997, which is in the nature of the second FIR under Section 154 Cr.P.C. is valid and can it form the basis of a fresh investigation? (iii) What is the effect of the report of Sri K. Padmanabhan Commission of Inquiry; and (iv) Whether the facts and the circumstances of the case justify a fresh investigation by CBI." 8. After consideration of the provisions of the Code of Criminal Procedure with regard to the registration of cognizable offences, investigation into the same ending with the submission of the final report the Supreme Court concluded in the relevant extract at Para 19 of the judgment as follows: "19...Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the Station House Diary the Officer Incharge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 Cr.P.C." 9. The Supreme Court further held that where the incident in sum and substances were the same, registering the second FIR without making further investigation and forwarding the report under Section 173 Cr.P.C. would be irregular and Court can take cognizance upon the same. It was held therein that a second FIR filed in respect of the same incident on the same facts after about three hours was not justifiable in Saw. The conclusion at Paras 26 & 27 of the judgment was that 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 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, shall be a fit case for exercise of powers under Section 482 Cr.P.C. 10. That the registration of the information based on the report of the Enquiry Commission as the second FIR in regard to the san incident and making a fresh investigation was not permissible under the scheme of Criminal Procedure Code and any report in pursuance thereof cannot but be invalid. 11. Coming to the facts of this case, the occurrence in both FIRs is the same. The arrest of the absconding accused, the petitioner in his FIR stated that the deceased was apprehended, beaten up by the villagers, was suffering from ailment when he died for reason of the assault. The second FIR alleges that the petitioner arrested him when there was no evidence that he was assaulted by the villagers or suffering from ailment but that the death resulted from the assault made by the petitioner. The deceased is one, the occurrence is one either of the allegations are correct to be deciphered in one investigation itself. 12. On the facts of this case, final form had already been submitted before Chausa P.S. Case No. 73/1998 came to be registered. In the case of T.T. Anthony (supra) referred to above the subsequent Crime No. 267/97 was registered as the third case even while investigation in the first two FIRs viz. Crime No. 353/1994 and 354/94 was pending. The petitioner therefore has made out a stronger case for exercise of powers under Section 482 Cr.P.C. 13. In the case of T.T. Anthony (supra) referred to above the subsequent Crime No. 267/97 was registered as the third case even while investigation in the first two FIRs viz. Crime No. 353/1994 and 354/94 was pending. The petitioner therefore has made out a stronger case for exercise of powers under Section 482 Cr.P.C. 13. The entire prosecution of the petitioner in Chausa P.S. Case No. 73/94/G.R. No. 856/98 pending before the Judicial Magistrate, 1st Class, Madhepura is therefore quashed. 14. This application is allowed.