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2012 DIGILAW 955 (GAU)

Anung Welly v. State of Arunachal Pradesh

2012-08-09

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. Heard Mr. P.K. Tiwari, learned counsel for the writ petitioner. I have also heard Mr. N. Lowang, learned Additional Senior Government Advocate, appearing for respondent Nos. 1, 2 and 3 and Mr. D. Lazi, learned counsel, appearing for respondent Nos. 4, 5 and 6. When a First Information Report (in short, 'FIR'), lodged by respondent Nos. 4, 5 and 6, who claim to be social activists, alleging that the appointment of the present petitioner had been obtained on the basis of forged documents, was declined to be registered by the officer-in-Charge, Itanagar Police Station, the respondent Nos. 4, 5 and 6 came to this Court, by way of a writ petition, made under Article 226 of the Constitution of India, for necessary directions to be issued to the respondents, particularly, the Officer-in-Charge, Itanagar Police Station, to register the said FIR, and, on a direction issued by this Court, the FIR, so lodged, was registered against the present writ petitioner and the matter is under investigation. 2. While the investigation of the case, so lodged by the respondent Nos. 4, 5 and 6 was still in progress, the present petitioner had filed an FIR making allegations of forgery, etc., including offence of making evidence disappear, against respondent Nos. 4, 5 and 6. As the FIR, which the present petitioner had lodged, was refused to be registered by the Officer-in-Charge, Itanagar Police Station, on the ground that since the earlier FIR already stood registered as Itanagar Police Station Case No. 72/2011, under Section 468 /471 IPC, against, amongst others, the present petitioners, the question of registering another FIR, at the behest of the petitioner, who was an accused in the earlier FIR, would be illegal and is impermissible in law. 3. The question, which, now, arises for determination is: Whether it is permissible, in law, to have two different FIRs registered arising out of the same incident or occurrence? 4. While considering the question, posed above, it needs to be noted that an FIR, under Section 154 Cr.P.C., is an important document inasmuch an FIR is registered if the FIR discloses commission of cognizable offence. Ordinarily, therefore, the Officer-in-Charge of a police station is bound, in law, to register an FIR. When a subsequent FIR is lodged and the Officer-in-Charge finds that it relates to the same incident, he may refuse to register the subsequent FIR. Ordinarily, therefore, the Officer-in-Charge of a police station is bound, in law, to register an FIR. When a subsequent FIR is lodged and the Officer-in-Charge finds that it relates to the same incident, he may refuse to register the subsequent FIR. However, when, as regards the same incident, the subsequent FIR gives a different version or, to put it a little differently, a version, different from the one in the earlier FIR, then, the second FIR cannot be refused to be entertained and registered by the Investigating Agency, or else, the concept of counter-case or cross-case would cease to exist. A reference, in this regard, may be made to the case of Nirmal Singh Kahlon Vs. State of Punjab, reported in (2009) 1 SCC 441 , wherein the Supreme Court, while dealing with this aspect of law, held, at paragraph 67 of its decision, as under: 67. The second FIR, in our opinion, would be maintainable not only because there are different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged. 5. In the light of the decision, in Nirmal Singh Kahlon's case (supra), it was observed by the Supreme Court, in Babubhai Vs. State of Gujarat & Ors., reported in (2010) 12 SCC 254 , at paragraphs 20 and 21, thus; 20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of cognizable offence recorded by the officer in charge of the police station. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of cognizable offence recorded by the officer in charge of the police station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the first information report will be statements falling under Section 162 Cr.P.C. 21. In such a case, the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident, the accused, in the first FIR, comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. (Emphasis added) 6. The law laid down, in Babubhai's case (supra), has been referred to, and registered by, the Supreme Court in Shivshankar Singh Vs. State of Bihar & Anr. (Emphasis added) 6. The law laid down, in Babubhai's case (supra), has been referred to, and registered by, the Supreme Court in Shivshankar Singh Vs. State of Bihar & Anr. reported in (2012) 1 SCC 130 , wherein the Supreme Court, referring to the scheme of the Code of Criminal Procedure, particularly, with regard to Section 154 Cr.P.C., which relates to registration of Fist Information Report, has observed that the submission, that in respect of the same incident, there cannot be two FIRs, is incorrect in as mush as if in the two FIRs, there are two different versions of the same incident, then, the police officer concerned is bound to register both the FIRs. The relevant observations, which appear, in this regard, in paragraph 10 of the decision of the Supreme Court, in Shivshankar Singh (supra), read as under: 10. We do not find any force in the submission made on behalf of the respondents that as in respect of the same incident, i.e., dacoity and murder of Gopal Singh, the appellant himself along with others is facing criminal trial, proceedings cannot be initiated against Respondent 2 at his behest as registration of two FIRs in respect of the same incident is not possible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross-cases and counter-cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Emphasis added) 7. In the light of the law discussed above, this Court is of the firm view that the refusal by the Officer-in-Charge, Itanagar Police Station, to register the FIR, lodged by the present petitioner, is wholly against the law laid down in that behalf. First Information Report must be entertained and registered according to the relevant provisions of law irrespective of its numbers, even if the FIRs relate to the same incident, provided that the FIRs disclose different versions of the same incident, or else, the concept of cross-case and/or counter-case would cease to exist. 8. First Information Report must be entertained and registered according to the relevant provisions of law irrespective of its numbers, even if the FIRs relate to the same incident, provided that the FIRs disclose different versions of the same incident, or else, the concept of cross-case and/or counter-case would cease to exist. 8. The disinclination or refusal, on the part of the State respondents, in the present case, to register the FIR, which was lodged by the present petitioner, is wholly illegal and it is, therefore, in the interest of justice, directed that the respondent No. 3, namely, Officer-in-Charge, Itanagar Police Station, shall, on the basis of the FIR lodged by the present petitioner, register a case under appropriate penal provisions and, then, investigate the case and do the needful in terms of the law contained in that behalf. 9. With the above observations and directions, this writ petition shall stands disposed of. No order as to costs.