Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1763 (BOM)

Shivraj v. State of Maharashtra

2014-08-07

P.R.BORA, S.S.SHINDE

body2014
Judgment : P.R. Bora, J. 1. Heard. Rule. Rule made returnable and heard forthwith with the consent of learned Counsel for the parties. 2. A very short question has been raised in the present petition as to whether two First Information Reports in respect of the same transaction are permissible. 3. Heard learned Counsel for the petitioners, learned A.P.P. and learned Counsel appearing for respondent no.2. Learned Counsel for the petitioners brought to our notice the written complaint filed by respondent no.2 to the Police Inspector, Begampura Police Station, Aurangabad (Shahar), on 2.11.2013. Learned Counsel further brought to our notice the endorsement made below the said application by the Duty Officer, Police Station, Begampura, Aurangabad ( Shahar). The endorsement reveals that the said FIR was entered into Station Diary at Sr.No.306/2013, entry No.51, at 21.50 hours. The endorsement further reveals that on orders of the Police Inspector, the matter is handed over for further inquiry to Beat Head constable Bhakare, Bakkal No.2097. Learned Counsel then brought to our notice the FIR registered at Police Station, Begampura, on 3.11.2013, for the offenses punishable under Sections 363, 511, 392 and 34 of IPC. Learned Counsel invited our attention to the complaint on the basis of which the said FIR has been registered at Begampura Police Station. The complaint has been filed by respondent no.2 herein on 3.11.2013. Learned Counsel submitted that both the complaints are arising out of the incident alleged to have happened on 2.11.2013 in the period between 8 p.m. to 8.15 p.m. 4. During the course of arguments, learned Counsel for respondent no.2 brought to the notice of the Court that the typed copy of the FIR dated 2.11.2013, placed on record by the petitioners at page No.31 of the petition, is incorrect, and intentionally, two names i.e. of Bhausaheb Mokale and Shivraj Ubale have not been mentioned which are appearing in the FIR lodged in the Police Station on 2.11.2013. Learned Counsel placed on record copy of the said FIR. Thereupon, learned Counsel for the petitioners submitted that a typographical mistake has occurred while getting typed the said FIR. He submitted that names of Bhausaheb Mokale and Shivraj Ubale have not been intentionally omitted but that is an inadvertent mistake. 5. We have carefully gone through the written complaint filed by respondent no.2 on 2.11.2013 and the complaint dated 3.11.2013. Thereupon, learned Counsel for the petitioners submitted that a typographical mistake has occurred while getting typed the said FIR. He submitted that names of Bhausaheb Mokale and Shivraj Ubale have not been intentionally omitted but that is an inadvertent mistake. 5. We have carefully gone through the written complaint filed by respondent no.2 on 2.11.2013 and the complaint dated 3.11.2013. Both the complaints are arising out of the incident stated to have happened on 2.11.2013 at about 8 pm to 8.15 p.m. The spot of occurrence as has been stated in both the complaints is also the same. As mentioned earlier, learned Counsel for respondent no.2 has also placed on record copy of the complaint filed by respondent no.2 on 2.11.2013 bearing endorsement and seal of Police Station, Begampura, acknowledging receipt of the said complaint and further endorsement to which we have referred hereinabove. 6. Learned Counsel appearing for respondent no.2 submitted that on 2.11.2013, immediately after occurrence of the alleged incident, respondent no.2 has lodged report with Police Station, Begampura, and on 3.11.2013, his statement was recorded by the Police. Learned Counsel submitted that while lodging the FIR since respondent no.2 was in frightened condition, he could not state all the particulars in regard to the incident occurred which he has elaborately stated on 3.11.2013 in his statement recorded by the Police. Learned Counsel submitted that nothing wrong has been committed by the Police in registering an offense based on the report given by respondent no.2 on 3.11.2013 which contains sufficient particulars pertaining to the incident occurred on 2.11.2013. 7. Learned Counsel for the petitioner has vehemently submitted that no two First Information Reports are permissible in connection with the same incident. To substantiate his contention, learned Counsel has placed his reliance on two judgments of the Supreme Court; one, in the case of T.N. Antony vs. State of Kerala and others ( (2001) 6 SCC 181 ) and other in the case of Babubhai Vs. State of Gujarat and others ( (2010) 12 SCC 254 ). We have gone through the ratio laid down in both the judgments. In both the judgments, the Hon'ble Supreme Court has held that two First Information Reports in respect of the same transaction are not permissible. 8. State of Gujarat and others ( (2010) 12 SCC 254 ). We have gone through the ratio laid down in both the judgments. In both the judgments, the Hon'ble Supreme Court has held that two First Information Reports in respect of the same transaction are not permissible. 8. In the case of T.T. Antony (cited supra), following point was specifically raised before the Hon'ble Supreme Court for determination: "(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 of Cr.P.C., is valid and can it form the basis of a fresh investigation?" Observations made by the Hon'ble Apex Court in paragraph nos. 17 to 20 are relevant so far as the controversy raised in the present petition is concerned. We would, therefore, like to reproduce the said observations which are thus: "17. Sub-section (1) of Section 154 of Cr.P.C. contains four mandates to an officer in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 of Cr.P.C. which provides that immediately on receipt of the information the officer in charge of the Police Station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence." "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 a 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 from 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." In paragraph No.35 of the judgment, the Supreme Court has recorded its conclusion as follows: "For the aforementioned reasons, the registration of the second FIR under Section 154 of Cr.P.C. on the basis of the letter of the Director General of Police as Crime No.268/97 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crime No.353/94 and Crime No.354/94 for making further investigations and filing a further report or reports under Section 173(8) of Cr.P.C. before the competent Magistrate in the said cases. In this view of the matter, we are not inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268/97 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside." 8. In the judgment of Babubhai (cited supra), the Hon'ble Supreme Court has held as under: "20. In the judgment of Babubhai (cited supra), the Hon'ble Supreme Court has held as under: "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 a 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 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 counter claim, investigation on both the FIRs has to be conducted." 9. In the backdrop of the observations made by the Hon'ble Supreme Court, in both the above judgments, when we examined the facts involved in the present case and compared both the FIRs, no doubt has remained in our mind that both the incidents had occurred at the same place and at the same time. In the backdrop of the observations made by the Hon'ble Supreme Court, in both the above judgments, when we examined the facts involved in the present case and compared both the FIRs, no doubt has remained in our mind that both the incidents had occurred at the same place and at the same time. In the circumstances, the information which was given first in point of time and which was taken note of in the Station Diary and in which the investigation was directed by the Police Inspector of the concerned Police Station shall stand, and the second report lodged by the complainant and the FIR registered on its basis is liable to be set aside and quashed, accordingly the same is quashed and set aside. Needless to state that the Police authorities are not precluded from carrying out investigation, if any, on the basis of first FIR. Petition allowed accordingly. Rule made absolute.