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2013 DIGILAW 1339 (PAT)

Md. Imteyaz Khan v. State of Bihar

2013-11-27

ASHWANI KUMAR SINGH

body2013
Order Heard the parties. 2. The petitioners have invoked the jurisdiction of this court under Article 226 of the Constitution for quashing the first information report (hereinafter referred to as “the FIR”) of Sitamarhi P.S. Case No.67 of 2008 dated 21st February, 2008 registered for the offences punishable under sections 25(1-B)A, 26 and 35 of the Arms Act, sections 7 and 13 of the Prevention of Corruption Act, 1988 as well as sections 452, 120B, 192, 182 and 211 of the Indian Penal Code. 3. At the very outset, it is requisite to be stated that on 7th December, 2007, on the basis of a written report submitted by petitioner no.2 at 5.30 a.m. to the Inspector-cum-Officer Incharge Town Police Station, Sitamarhi, a police case being Sitamarhi P.S. Case No.601 of 2007 dated 7th December, 2007 was registered under sections 25(1-B)A and 26 of the Arms Act against one Raj Kishor Paswan (respondent no.6) in respect of alleged recovery of one country made revolver and three live cartridges from the room of his house. On the same date, respondent no.6 Raj Kishor Paswan was apprehended by the police and on production before the court was remanded to judicial custody. After conclusion of investigation of the aforesaid Sitamarhi P.S. Case No.601 of 2007, the investigating officer of the case submitted charge-sheet on 1st February, 2008 for the offences punishable under the Arms Act. On receipt of the aforesaid charge-sheet dated 1st February, 2008, the Chief Judicial Magistrate, Sitamarhi vide his order dated 19th February, 2008 took cognizance of the offences punishable under sections 25(1-B)A and 26 of the Arms Act against respondent no.6. However, immediately thereafter, on the same day i.e. on 19th February, 2008 itself, an application was filed by the investigating officer of Sitamarhi P.S. Case No.601 of 2007 seeking permission for further investigation of the case as some new facts had come to the notice of the police regarding the matter after submission of charge-sheet in the case. The learned Chief Judicial Magistrate, Sitamarhi allowed the aforesaid application of the investigating officer of the case in terms of section 173(8) of the Code of Criminal Procedure (hereinafter referred to as “the Code”). 4. The learned Chief Judicial Magistrate, Sitamarhi allowed the aforesaid application of the investigating officer of the case in terms of section 173(8) of the Code of Criminal Procedure (hereinafter referred to as “the Code”). 4. It is pertinent to note here that the police proceeded ahead with further investigation of Sitamarhi P.S. Case No.601 of 2007 and ultimately submitted a supplementary police report under section 173(2) of the Code vide final report no.395 of 2011 dated 25th April, 2011 holding the entire prosecution case against respondent no.6 to be maliciously false. 5. After receipt of supplementary police report in the aforesaid case, the learned Chief Judicial Magistrate, Sitamarhi issued notice to the informant. However, since the informant did not turn up despite notice, the learned Chief Judicial Magistrate, Sitamarhi accepted the final report submitted by the police vide order dated 10th January, 2012 and closed the prosecution case of Sitamarhi P.S. Case No.601 of 2007. 6. As the facts would further unfurl, after obtaining instructions from the Deputy Inspector General, Tirhut Range, Muzaffarpur and Superintendent of Police, Sitamarhi, one Lalan Sharma, a Sub Inspector of Police submitted a written report to the Inspector-cum-Officer Incharge, Sitamarhi Police Station alleging, inter alia, that respondent no.6 Raj Kishor Paswan was earlier employed by a food grain dealer, namely, Surendra Prasad. For some reasons, subsequently, respondent no.6 refused to work with said Surendra Prasad. It has further been alleged that Surendra Prasad had nexus with one Gajendra Singh, an Assistant General Manager, State Food Corporation, Sitamarhi and they were engaged in black marketing of food grains. Both Surendra Prasad and Gajendra Singh were uncomfortable in carrying their illegal trade of food grains as they suspected that respondent no.6, who was in know of their illegal trade would create problem for them. Hence, they hatched up a conspiracy with the petitioners in order to implicate respondent no.6 Raj Kishor Paswan in a false case. It has further been asserted in the written report that the petitioners, namely, Md. Hence, they hatched up a conspiracy with the petitioners in order to implicate respondent no.6 Raj Kishor Paswan in a false case. It has further been asserted in the written report that the petitioners, namely, Md. Imteyaz Khan, Ganga Dyal Prasad, Tribhuban Pandey and Lalan Prasad Yadav being in police service abused their official position, concocted a false story, forcibly planted the illegal arm and ammunitions in the room of respondent no.6 and, thereafter, fabricated a fake seizure memo on the basis of which the FIR being Sitamarhi P.S. Case No.601 of 2007 dated 7th December, 2007 was registered against respondent no.6 Raj Kishor Paswan. 7. On the basis of the aforesaid written report submitted by Lalan Sharma, Sitamarhi P.S. Case No.67 of 2008 dated 21st February, 2008 was registered against the petitioners and co-accused Surendra Prasad as well as Gajendra Singh. The present case has been filed challenging the legality of Sitamarhi P.S. Case No.67 of 2008. 8. It is submitted by learned counsel for the petitioners that Sitamarhi P.S. Case No.67 of 2008 could not have been allowed to be registered and entertained for investigation as law prohibits institution of second FIR in respect of same cognizable offence. He has further submitted that when there is a legal impediment for setting a criminal law in motion, the institution of second FIR is per se illegal. 9. It has further been contended that even otherwise the 1st FIR i.e. Sitamarhi P.S. Case No.601 of 2007 dated 7th December, 2007 was duly investigated upon and on conclusion of investigation the police found the case to be true and, as such, the report under section 173(2) of the Code was submitted in the court pursuant to which the learned Chief Judicial Magistrate, Sitamarhi took cognizance of the offences punishable under sections 25(1-B)A and 26 of the Arms Act against respondent no.6 Raj Kishor Paswan. Hence, the subsequent FIR being Sitamarhi P.S. Case No.67 of 2008 instituted on 21st February, 2008 alleging, inter alia, that the initial FIR instituted on 7th December, 2007 was fabricated one has no basis to stand. 10. Ms. Alka Verma, A.C. to A.A.G.-IV, per contra submitted that there is no absolute prohibition in law for lodgment of a second FIR and, more so, when different versions are put forth by different persons and there are different accused persons. 11. 10. Ms. Alka Verma, A.C. to A.A.G.-IV, per contra submitted that there is no absolute prohibition in law for lodgment of a second FIR and, more so, when different versions are put forth by different persons and there are different accused persons. 11. Learned counsel for the State has further contended that there would be no embargo for registration of two FIRs, if substance of the allegations is contrary to each other as the same would not invite the frown of Article 20 of the Constitution of India. It is also contended on behalf of the State that on receipt of further materials in connection with first case i.e. Sitamarhi P.S. Case No.601 of 2007, the police investigated the case further after obtaining permission from the court and submitted a supplementary police report holding the case to be maliciously false. The learned Chief Judicial Magistrate, Sitamarhi, after going through the supplementary report and the materials collected in course of further investigation, accepted the police report and closed the prosecution case so far as Sitamarhi P.S. Case No.601 of 2007 is concerned. 12. Having heard the parties, I find substance in the arguments advanced on behalf of the State. 13. Chapter XII of the Code deals with information to the police and their powers to investigate. As provided under section 154 of the Code, every information relating to commission of a cognizable offence either given orally or in writing is required to be entertained in a book to be kept by the officer-in-charge of the concerned police station. The said FIR, as mandated by law, has to pertain to a cognizable case. Section 2(c) of the Code defines “cognizable offence” which also deals with cognizable cases. It reads as follows.– “Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.” 14. If the primary requirement of the reported offence being cognizable is satisfied, an FIR has to be mandatorily registered and the criminal law has to be set in motion. In such eventuality, the officer-in-charge of the police station takes up the investigation. If the primary requirement of the reported offence being cognizable is satisfied, an FIR has to be mandatorily registered and the criminal law has to be set in motion. In such eventuality, the officer-in-charge of the police station takes up the investigation. The question that has emerged for consideration in this case is whether after registration of the FIR and commencement of the investigation, a second FIR relating to the same incident can be registered. 15. It is well settled that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the police. 16. In Ram Lal Narang Vs. State (Delhi Administration) since reported in (1979) 2 SCC 322 the Hon’ble Supreme Court while dealing with the facts and circumstances of the case where two FIRs were lodged and two charge-sheets were filed took note of the fact that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first one and further the conspirators were different, although the conspiracy which was the subject matter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subject matter of the second case. After adverting to the various facets, it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view, the Hon’ble Supreme Court did not find any flaw in the investigation on the basis of subsequent FIR. 17. In Babubhai Vs. State of Gujarat and others since reported in 2010 (12) SCC 254 the Hon’ble Supreme Court expressed the view that 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, if the contrary is proved, where the version in the second FIR is different, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counter claim in respect of the same incident, investigation on both the FIRs has to be conducted. 18. In Kari Choudhary Vs. Sita Devi since reported in 2002(1) SCC 714 the Hon’ble Supreme Court has held that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival version in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the same investigating agency. 19. In Upkar Singh Vs. Ved Prakash and others since reported in 2004(13) SCC 292 a three-Judge Bench of the Hon’ble Supreme Court categorically held that an aggrieved person is not precluded from filing a counter case. 20. Thus, in view of catena of decisions of the Hon’ble Supreme Court it is obvious that each case is to be judged on the basis of its own facts and circumstances. It is to be seen as to whether the allegations in two FIRs are identical. What is prohibited in law is any further FIR by the same informant or others against the same accused subsequent to the registration of the case under the Code in respect of the same offence. 21. In the present case, it is found that first FIR was registered on the basis of an allegation that one revolver and three live cartridges were recovered by the police from the room of respondent no.6 Raj Kishor Paswan when the police conducted raid in his house. However, the second case has been instituted on the basis of written report submitted by a Sub Inspector of Police after obtaining permission from the Superintendent of Police and Deputy Inspector General of Police alleging, inter alia, that the petitioners, who were members of the police raiding team conspired together with two private persons, concocted a false story and planted illegal arm and ammunitions forcibly in the room of respondent no.6 and thereafter fabricated a fake seizure memo on the basis of which Sitamarhi P.S. Case No.601 of 2007 was registered. Apparently, the allegations made in the two FIRs are not identical. The informant and the accused persons are different. It is, thus, clear that the two FIRs are different in truth and substance. 22. I further find that the police on conclusion of investigation found the allegations made in the first FIR i.e. Sitamarhi P.S. Case No.601 of 2007 to be maliciously false. The learned Chief Judicial Magistrate, Sitamarhi has accepted the supplementary police report and vide order dated 10th January, 2012 closed the prosecution case of Sitamarhi P.S. Case No.601 of 2007. 23. It is reiterated that in the case at hand, the petitioners are alleged to have prepared fake and fraudulent documents. They being police personnels are alleged to have planted illegal arm and ammunitions in the house of respondent no.6. They are alleged to have abused their official position and conspired together with some private persons, who wanted to implicate respondent no.6 in a false case with oblique motive. I further find that the FIR of Sitamarhi P.S. Case No.67 of 2008 dated 21st February, 2008 has been instituted as per direction of the Superintendent of Police and the Deputy Inspector General of Police on disclosure of larger conspiracy which emerged in course of investigation of the first case i.e. Sitamarhi P.S. Case No.601 of 2007. Apparently, the allegations made in the two FIRs have different spectrum. They are distinct and separate. By no stretch of imagination, it can be said that the second FIR i.e. Sitamarhi P.S. Case No.67 of 2008 is relating to same cause of action and the same incident and there is sameness of the occurrence. 24. At the cost of repetition, I may note here that the allegations made in the FIR, in question, are extremely serious. What has been alleged in the FIR is a glaring example of mala fide exercise of power and police high handedness in implicating an innocent person in a case of serious nature with oblique motive. The police force is a disciplined force and its officials are the arm of law and they play pivotal role in the dispensation of criminal justice and maintenance of law and order and public order in the society. People repose great faith and confidence in the administration of criminal justice. The police force is a disciplined force and its officials are the arm of law and they play pivotal role in the dispensation of criminal justice and maintenance of law and order and public order in the society. People repose great faith and confidence in the administration of criminal justice. If they behave recklessly and in a wayward manner by misusing power, it would be great threat to administration of criminal justice. The case needs to be investigated in a fair and impartial manner. In case, the investigation has yet not concluded, the Superintendent of Police, Sitamarhi is directed to personally supervise the investigation of Sitamarhi P.S. Case No.67 of 2008. He is further directed to ensure that investigation of the case is concluded as early as possible but in no case later than three months from the date of receipt/production of a copy of this order. 25. In the result, the writ petition is dismissed. 26. The Registry is directed to send a copy of the order to the Superintendent of Police, Sitamarhi through fax forthwith.