Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 1617 (PNJ)

Balkar Singh v. State Of Punjab

2010-05-10

RAM CHAND GUPTA

body2010
Judgment Ram Chand Gupta, J. 1. Both the aforementioned petitions under Section 482 of the Code of Criminal Procedure (hereinafter to be referred as Cr.P.C) have been filed for quashing of judgment dated 1.5.2009, An-nexure P-5, passed in Sessions trial No. 24 of 2009 by learned Additional Sessions Judge, Ferozepur, to the extent of issuance of direction to Senior Superintendent of Police, Ferozepur, for registration of FIR against the present petitioners. 2. I have heard learned counsel for the parties and have gone through the whole record carefully. 3. Briefly stated on written application of Branch Manager, State Bank of India, Jalalabad (West), FIR No. 164, dated 19.12.2006, under Sections 489-B and 120-B IPC was registered against Balkar Singh, one of the petitioners, at Police Station City Jalalabad, District Ferozepur. The said case was investigated by Bachan Singh, Sub Inspector, Police Station City Jalalabad and after investigation the petitioners were found innocent and hence, they were placed in column No. 2 of the final report prepared under Section 173 Cr.P.C. and the report was filed against co-accused Banta Singh only, who faced trial before learned Additional District and Sessions Judge, Ferozepur. Vide impugned judgement dated 1.5.2009, learned trial Court acquitted Banta Singh of the charge framed against him and however, learned trial Court wrote a letter to Senior Superintendent of Police, Ferozepur to order registration of FIR regarding possession of fake currency note against petitioners Balkar Singh and Rajnish Kumar and for further investigating the matter and submitting challan against them. 4. It has been vehemently contended by learned counsel for the petitioners that Banta Singh had come to the cabin of petitioner Rajnish Kumar, Stamp vendor and asked him to purchase stamp papers worth Rs. 24000/- by giving 24 notes of the denomination of Rs. 1000/- each. It is further contended that Rajnish Kumar-petitioner handed over the amount alongwith voucher to petitioner Balkar Singh for depositing the same in the bank so that stamp papers could be purchased and however, on reaching the bank it was revealed that those 24 notes, denomination of Rs. 1000/- each, were fake. It is further contended that matter was fully investigated by the police and after investigation both the petitioners were found innocent and the challan was filed against Banta Singh only, whereas the present petitioners were placed in column No. 2 of the challan. 1000/- each, were fake. It is further contended that matter was fully investigated by the police and after investigation both the petitioners were found innocent and the challan was filed against Banta Singh only, whereas the present petitioners were placed in column No. 2 of the challan. It has been further contended that statements of petitioners and of Banta Singh recorded by the police were also formed part of the challan. Hence, it is contended that once the matter was fully investigated against the present petitioners and they were found innocent by the police, learned trial Court while acquitting Banta Singh cannot give directions/recommendations to Senior Superintendent of Police, Ferozepur, to register another FIR regarding the same occurrence and on the same facts against the present petitioners. Hence, it is contended that learned trial Court has acted beyond jurisdiction while ordering for registration of fresh FIR against the petitioners on the same facts. It is further contended that after filing of challan by the police, the only power vested with the learned trial Court is under Section 319 Cr.P.C. before passing of any judgment and that learned trial Court has no power for ordering of registration of second FIR on the same facts. 5. Learned State counsel has not disputed the aforementioned facts of the present case. He has merely taken the plea that the second FIR has been registered as per directions of learned Additional Sessions Judge. 6. A perusal of both the FIRs shows that the same are based on the same facts. The present petitioners were also named in the earlier FIR. The case was fully investigated and they were found innocent by the police and were placed in column No. 2 of the report filed under Section 173 Cr.P.C. and the challan was filed against co-accused Banta Singh only, who was acquitted by learned trial Court vide impugned judgment. After acquittal of Banta Singh by learned trial Court, it ordered for registration of second FIR on the same facts against the present petitioners. 7. There is force in the argument of learned counsel for the petitioners that under the scheme of Code of Criminal Procedure, no such power vests in learned trial Court for ordering registration of second FIR at the time of acquitting the accused facing trial before the Court. 7. There is force in the argument of learned counsel for the petitioners that under the scheme of Code of Criminal Procedure, no such power vests in learned trial Court for ordering registration of second FIR at the time of acquitting the accused facing trial before the Court. Moreover, there can be no second FIR in respect of the same cognizable offence, same incidence or occurrence, as per the scheme of the Cr.P.C. 8. On this point reliance can also be placed upon T.T. Antony v. State of Kerala and others 2001(3) R.C.R.(Criminal) 436 : AIR 2001 Supreme Court 2637, relevant paragraphs of which read as under :- "18. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 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 a vague information by a phone call or a 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 informations 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 of 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. Take a case where an FIR mentions cognizable offence under Section 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. 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 investigation 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. 19. 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. 19. 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 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 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 20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest 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 offences. 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 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 of the Cr.P.C. 9. So far as powers of this Court under Section 482 Cr.P.C. for quashing of FIR and consequential proceedings are concerned" it has been held by Honble Apex Court in various judgments that High Court under Section 482 Cr.P.C. or under Articles 226/227 of the Constitution of India can order for quashing of the FIR and consequential proceedings to prevent abuse of process of the Court or otherwsie to secure the ends of justice. 10. In State of Haryana y. Bhajan Lal, AIR 1992 SC 604 after exhaustive consideration" of the decisions of this Court in State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949; S.N. Sharma v. Bipen Kumar Tiwari, AIR 1970 SC 786; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; Nandini Satpathy v. P.L.Dani, AIR 1978 SC 1025 and Prabhu Dayal Deorah v. District Magistrate, Kamrup, AIR 1974 SC 183, approving the judgment of the Privy Council in Khwaja Nazir Ahmads case AIR 1945 PC 18, it was concluded as follows : "In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge." 11. In M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and another 1997 (4) RCR (Criminal) 761 (SC) it was observed by Honble Apex Court as under: "It is settled that High Court can exercise its power of judicial review in criminal matters. In state of haryana and. v. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 (SC) : JT 1990 (4) SC 650: 1992 Supp. (1) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code, which, it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. (1) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code, which, it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. Under Article 227, the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution to be exercised in using these powers." 12. This question was again considered by Honble Apex Court in g.Sagar Suri v. State of U.P., 2000 (1) RCR. (Criminal). 707 (SC). In B.S.Joshi and others v. State of Haryana and another 2003 (2) RCR (Crl) 888, it was observed as under: "It is thus, clear that Madhu Limayes case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the constitution of India. We are, therefore, of the view that if the purpose of securing the ends of justice, quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. We are, therefore, of the view that if the purpose of securing the ends of justice, quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power." 13. Hence, in view of this legal preposition settled by Honble ApexCourt, this Court is having powers under Section 482 Cr.P.C. to quash a particular order, registration of FIR pursuant to the said order and consequential proceedings arising therefrom to prevent abuse of process of the Court and for the purpose of securing the, ends of justice. 14. In the present case learned Additional Sessions Judge while acquitting co-accused Banta Singh was having no power under the scheme of Code of Criminal Procedure to order for registration of second FIR on the same facts against the present petitioners and to order for further investigation of the second FIR on the same facts as the matter was fully investigated by the police against the present petitioners as well and they were found innocent. Hence, the impugned order passed by learned Sessions Judge ordering for registration of second FIR against the present petitioners, consequential registration of second FIR and investigation pursuant thereto cannot be sustained in the eyes of law. The same is nothing but the misuse of process of law resulting into unnecessary harassment to the present petitioners. 15. In view of my above discussion, the present petitions are allowed and the impugned judgment passed by learned Additional Sessions Judge, Ferozepur, to the extent of issuance of direction to Senior Superintendent of Police, Ferozepur for registration of FIR against the present petitioners and for further investigation of the case, subsequent registration of FIR and the consequential proceedings arising thereupon are, hereby, quashed.