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2016 DIGILAW 553 (JHR)

Md. Jalil Ansari v. State of Jharkhand

2016-04-04

RONGON MUKHOPADHYAY

body2016
ORDER : In this application the petitioner has prayed for quashing the entire criminal proceedings in connection with Giddi P. S. Case No. 03 of 2014 registered for the offences punishable under Sections 302, 201, 120B/34 of the Indian Penal Code. 2. A First Information Report was instituted by the petitioner being Giddi P.S. case No. 71 of 2008 in which it was alleged that the niece of the petitioner was missing along with one Bhola Bhokta but subsequently on 19.09.2008 her dead body was recovered and it was suspected that unknown criminals might have committed the murder. 3. In course of investigation in Giddi P. S. Case No. 71 of 2008 it came to light about the involvement of the petitioner along with other accused persons of committing the murder of Guria Praveen and Bhola Bhogta and on the direction of the Deputy Superintendent of Police C.C.R., Hazribagh a First Information Report was instituted being Giddi P. S. Case No. 03 of 2014 for the offences punishable under Sections 302, 201, 120B/34 of the Indian Penal Code. 4. Heard Mr. Nilesh Kumar, learned counsel appearing for the petitioner and Mr. V. K. Tiwari, learned A.P.P. 5. Mr. Nilesh Kumar, learned counsel appearing for the petitioner, has submitted that Giddi P. S. Case No. 3 of 2014 could not have been instituted as with respect to the same incident Giddi P. S. case No. 71 of 2008 was already filed. It has been submitted that the reasoning given for instituting the second First Information Report itself seems to be without any basis as the ground which has been taken that if a separate case is not instituted against the petitioner the prosecution evidence would become weak as the petitioner was the informant in Giddi P.S. case No. 71 of 2008. It has been submitted that the reasoning given for instituting the second First Information Report itself seems to be without any basis as the ground which has been taken that if a separate case is not instituted against the petitioner the prosecution evidence would become weak as the petitioner was the informant in Giddi P.S. case No. 71 of 2008. Learned counsel in support of his contention submits that the second First Information Report is a direct consequence of the investigation undertaken in Giddi P. S. Case No. 71 of 2008 and the same cannot be permitted to proceed and in support of his argument, learned counsel for the petitioner has referred to the judgment in the case of T. T. Antony vs. State of Kerala And Others reported in (2001) 6 SCC 181 , Babubhai vs. State of Gujarat And Others (2010) 12 SCC 254 and Amitbhai Anilchandra Shah vs. Central Bureau of Investigation And Another reported in (2013) 6 SCC 348 . 6. Mr. V. K. Tiwari, learned A.P.P., on the other hand, has submitted that since the petitioner is the informant in Giddi P. S. Case No. 71 of 2008 and since his involvement in committing the murder of Guria Praveen and Bhola Bhogta has surfaced on account of the investigation it was in order to bring the culprit to book a separate First Information Report had been instituted. Learned counsel further submits that both the First Information Reports are different in contents and purport, moresoever as the petitioner is an informant in Giddi P. S. Case No. 71 of 2008 while he is an accused in connection with Giddi P. S. Case No. 3 of 2014. 7. After hearing the rival submissions it appears that the only point for consideration in this application is whether the Investigating Officer of Giddi P. S. Case No. 71 of 2008 could have instituted a separate First Information Report being Giddi P. S. Case No. 3 of 2014 when the incident which relate to the submission of the subsequent First Information Report is a direct fall out of the investigation carried on by the police in the earlier First Information Report. In order to answer the point raised by the learned counsel for the parties it would be apt to refer to the judgment in the case of T. T. Antony vs. State of Kerala And Others (Supra) wherein it was held as follows:- “19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC 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 the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. 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 subsection (8) of Section 173 CrPC. 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 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. 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 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 CrPC.” 8. In the case of Babubhai vs. State of Gujarat And Others (Supra) it was held as follows:- “20. In the case of Babubhai vs. State of Gujarat And Others (Supra) it was held as follows:- “20. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 CrPC 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 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. 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 CrPC. 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.” 9. In the case of Babubhai vs. State of Gujarat And Others it has therefore, been held that to come to a conclusion whether both the First Information Reports relate to the same incident or are with respect to the same incident having various transactions test of sameness has to be followed. In the case of Babubhai vs. State of Gujarat And Others it has therefore, been held that to come to a conclusion whether both the First Information Reports relate to the same incident or are with respect to the same incident having various transactions test of sameness has to be followed. This view has once again been reiterated by the Hon’ble Supreme Court in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation And Another wherein a further test to be applied apart from the test of sameness is the test of consequenceness. The relevant portion of the judgment is extracted hereinbelow:- “38. Mr Raval, learned ASG, by referring T.T. Antony submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. The learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati — a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court: (1) Upkar Singh v. Ved Prakash, (2) Babubhai v. State of Gujarat, (3) Chirra Shivraj v. State of A.P., and (4) C. Muniappan v. State of T.N. In C. Muniappan this Court explained the “consequence test” i.e. if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR. 40. In view of the factual situation as projected by CBI itself, the ratio laid down by this Court in C. Muniappan viz. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR. 40. In view of the factual situation as projected by CBI itself, the ratio laid down by this Court in C. Muniappan viz. merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one charge-sheet could not be filed (see T.T. Antony).” 10. The cases referred to above have a common thread running through them that if the incident upon which the First Information Report is instituted is the same or is a part of the same transaction or is a consequence of the said incident a second First Information Report is impermissible in law. 11. Admittedly in the present case the informant had instituted a First Information Report against unknown persons with respect to the murder of Guria Praveen and Bhola Bhogta. By instituting the First Information Report which was registered as Giddi P. S. Case No. 71 of 2008 the petitioner being the informant had merely set the criminal law in motion. Investigation into the case revealed a wider angle of conspiracy in which the petitioner’s name prominently figured. The Investigating Officer instead of instituting a separate First Information Report on the direction of his superior could have filed a report before the learned court below or when he had come across further information could have made further investigation in terms of Section 173 (8) of the Cr.P.C. and could have submitted further reports. Merely because the petitioner was the informant in Giddi P. S. Case No. 71 of 2008 the same could not preclude or prevent the Investigation Officer to array the petitioner as an accused if sufficient evidences had been collected to suggest his involvement in the commission of the murders. Instituting a First Information Report on the directive of the higher police officials that to after a considerable delay as would be evident from the written report of Giddi P. S. 3 of 2014 does indicate the lackadaisical attitude of the Investigating Officer. Instituting a First Information Report on the directive of the higher police officials that to after a considerable delay as would be evident from the written report of Giddi P. S. 3 of 2014 does indicate the lackadaisical attitude of the Investigating Officer. The incident of the subsequent First Information Report being Giddi P. S. Case No. 3 of 2014 if tested in the anvil of “sameness” and “consequenceness” the same would undoubtedly reveal that the subsequent First Information Report could not have been instituted by the Police as the same was a resultant effect of the same incident and the investigation being conducted in Giddi P. S. Case No. 71 of 2008. 12. In such circumstances, therefore, continuation of the criminal proceedings in connection with Giddi P. S. Case no. 3 of 2014 shall result in a miscarriage of justice and will be an abuse of the process of Court. Accordingly, this application is allowed and the criminal proceedings in connection with Giddi P. S. No. 3 of 2014 instituted for the offences punishable under Sections 302, 201, 120B/34 of the Indian Penal Code is, hereby, quashed. Application allowed.