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Paras Roy and anr. Vs. State of Bihar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtPatna High Court
Decided On
Case NumberCri. Misc. No. 28550 of 2002
Judge
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 173 and 482
AppellantParas Roy and anr.
RespondentState of Bihar
Appellant AdvocateAshwani Kumar Singh and Anil Kumar, Advs.
Respondent AdvocateArun Kumar Singh, APP
DispositionPetition allowed
Excerpt:
(a) code of criminal procedure, 1973, section 482 - quashing of fir--second fir and investigation--superintendent of police directed to submit final report--the investigating officer instead of doing that filed final report which was duly accepted by the magistrate and after lapse of time filed a fresh fir against the petitioners--investigating officer could have further investigated the case and submitted further report instead of filing a second fir--held; filing of the second fir and the consequent investigation were not in accordance with law and liable to be quashed. - - at best the investigating officer could have further investigated the case under section 173(8) of the code and could have submitted further report instead of filing a second fir which was not permissible under law......shall be entered in a book to be kept by such officer. this document which first comes before the police officer in writing, or reduced in writing, and signed by the person giving it, is generally known as the first information report which puts the machinery of law in motion.7. section 156 of the code empowers a police officer to investigate a cognizable case and section 157 provides he procedure of investigation. section 173 of he code provides that as soon as he investigation is completed the officer-in-charge of the police station shall forward to the magistrate empowered to take cognizance of the offence, a report in the form prescribed by the state government giving the informations as mentioned under the section.8. sub-section (8) of section 173 of the code may be reproduced in.....
Judgment:

Prabhat Kumar Sinha, J.

1. This is a petition under Section 482 of the Code of Criminal Procedure ('the Code', in short) for quashing the First Information Report including investigation in Mufassil P.S. Case No. 13 of 2002 instituted for the offences under Sections 28 and 35 of the Arms Act, then pending in the Court of Chief Judicial Magistrate, Motihari at East Champaran.

2. The facts of the case in brief are that Mufassil P.S. Case No. 100 of 2001 under Arms Act was filed by petitioner No. 1, Paras Roy, against one Shankar Rai alleging therein that while he and petitioner No. 2, Rejeshwar Roy, were guarding the mango crops Shankar Rai with three others came and indulged into criminal activities and, on protest, Shankar Rai fired upon him which misfired. Shankar Rai started fleeing away but he fell down and the petitioners caught him at which he left behind country made pistol and fled away. After investigation the police filed the final report at Annexure-2, holding that the allegations were found not to be true at which the Superintendent of Police had ordered for filing of the final report, also directing to file charge-sheet against petitioner No. 1. On such order having been received the final report was submitted. It may be mentioned that as per the final form so submitted, no charge-sheet was submitted against petitioners No. 1 or 2. Thereafter, on a supplementary petition filed by the petitioners the protest petition was treated to be complaint and, after enquiry the learned Magistrate though did not find the allegation of recovery of country made pistol to have been made out, summoned Shankar Rai directing to face trial under Sections 380/511 of the Penal Code and ordered issuance of summons. It will appear that thereafter on the statement of one Ganga Roy, Assistant Sub Inspector of Police, Mufassil P.S. Case No. 13 of 2002 was registered against the petitioners on 17.1.2002, relating to the same case but alleging that in course of investigation the informant (petitioner No. 1) and other witnesses had supported the allegations against Shankar Rai but Shankar Rai had also placed his defence claiming as to why a false case was instituted against him, also noting that the country made pistol that was produced by the petitioners, on examination, was found to be not operative, hence Paras Roy had falsely implicated Shankar Rai. The case was registered under Sections 28 and 35 of the Arms Act.

3. In this case learned counsel for the petitioners and learned Additional Public Prosecutor have been heard and the case is being disposed of at this stage.

4. The argument of the learned counsel for the petitioners was that once an FIR was instituted and investigation proceeded on that basis, and if the petitioners were found involved in commission of any crime in relation to the same FIR, proper action against them should have been taken in connection with that FIR itself and, if necessary, charge-sheet against them should have been submitted instead of filing charge-sheet against Shankar Rai, but no second FIR could legally have been registered for investigation against the petitioners.

5. Learned Additional Public Prosecutor, on the other hand, argued that in the final report in the case instituted by the petitioner No. 1 it was mentioned that the Superintendent of Police had ordered for filing of charge-sheet against the petitioners and in compliance to that order a fresh FIR against the petitioners could have been registered and investigation taken up.

6. The term 'First Information Report' has not been defined anywhere in the Code but Section 154 of the Code states that every information relating to the commission of a cognizable offence, if given orally to an Officer-in-charge of a Police Station, shall be reduced to writing and every such information, whether given in writing or reduced to writing, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer. This document which first comes before the Police Officer in writing, or reduced in writing, and signed by the person giving it, is generally known as the First Information Report which puts the machinery of law in motion.

7. Section 156 of the Code empowers a Police Officer to investigate a cognizable case and Section 157 provides he procedure of investigation. Section 173 of he Code provides that as soon as he investigation is completed the Officer-in-charge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence, a report in the form prescribed by the State Government giving the informations as mentioned under the Section.

8. Sub-section (8) of Section 173 of the Code may be reproduced in his connection, which is relevant:-

'Section 173(8)-Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer 'in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'

9. Therefore, in the scheme prescribed under the Code if an information is so given about commission of a cognizable offence, the police is empowered to make an investigation and to submit a report about the result of the investigation to a Magistrate empowered to take cognizance of such offence. If any allegation in he first information report is made against a particular person, that does not circumscribe the powers of the investigating police officer to make investigation only against that person but if it appears to the Police in course of investigation that any offence has been committed by any person other than the person so named, including the informant, the police is free to proceed legally against that person/persons under the same FIR. However, nothing contained in Section 173(2) of the Code will preclude further investigation with respect to the offence after a report under sub-section (2) has been forwarded to the Magistrate and, upon such investigation, the officer-in-charge of the Police Station if obtains further evidence, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as prescribed. Therefore, the law nowhere envisages registering of a second FIR in relation to, or in connected with, the facts that have been revealed or alleged in the first information report.

10. In that regard decision of the Apex Court in the case of T.T. Antony v. State of Kerala, (2001) 6 Supreme Court cases 181, may be referred to. In that case when a Minister in the State of Kerala visited Kannur District, violent demonstrations were staged by the members of youth wing of the rival political party and police had to open fire, to protect the Minister and private properties, at two places. In respect of the occurrences at two places two first information reports were lodged, Crime No. 353 of 1994 and Crime No. 354 of 1994, on the date of incident. The Government also appointed a District and Sessions Judge as Commission of Enquiry. In the meantime in the Assembly election the ruling party lost and the coalition that came into power was headed by the party whose members were said to have committed the offence in the first two cases. The enquiry commission submitted report holding the former Minister, the Deputy Superintendent of Police and the Executive Magistrate responsible for the police firing and consequent death of five persons. The report was accepted and the Director General of Police was so informed with direction to take legal action against the persons responsible as per the findings of the Commission. The Director General of Police issued order to the Inspector General of Police (North Zone) to register a case immediately who, in his turn, directed the Station House Officer to register a case whereafter Crime No. 268 of 1997, under Section 302 of the Penal Code was registered arraigning the former Minister and aforesaid two officers as accused.

11. Subsequently a single Judge of the High Court directed the case to be re-investigated by the CBI and in writ Appeal, a Division Bench of the High Court ordered quashing of the FIR in Crime No. 268 of 1997 as against the Additional Superintendent of Police and directed a fresh investigation by the State Police headed by three senior officers. That resulted in the appeals in the Apex Court.

12. Their lordships of the Supreme Court examined certain points relating to the matter of which one was. that-'Whether the registration of a fresh case, Crime No. 268 of 1997 which is in the nature of second FIR under Section 154 of the Code was valid and could form the basis of a fresh investigation.' Their lordships in that regard observed that the information received under Section 154 of the Code was the First Information Report as postulated therein and all other informations made orally or in writing after 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 this notice during the investigation, will be statements falling under Section 162 of the Code. It was held that no information/statement could properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR, and the same could not be in conformity with the scheme of the Code. Giving an example their lordships observed-'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 FLR against H the reals offender who can be arraigned in the report under Sections 173(2) or 173(8), Cr PC, as the case may be.' In that connection their lordships also noted that if the gravamen of the charges in the two FIRs, the first and the second, is in fact and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 of the Code would be irregular and the Court could not take cognizance of the same.

13. their lordships thus, held the second FIR to be irregular and a fresh investigation by the investigating agency unwarranted, and illegal. Their lordships thereafter quashed the second FIR. leaving it open to the investigating agency to seek permission in Crime No, 268 of 1997 from the Magistrate to make further investigation, forwarding further report or reports, and proceed in accordance with law.

14. Based on the same principle the facts in this case may be evaluated. The police in course of investigation into the case filed by petitioner No. 1 came to the conclusion that the allegations were false and the Superintendent of police had also directed, as per the final report in that case, to file charge-sheet against petitioner No. 1. The Investigating Officer instead of doing that, filed final report against Shanker Rai which was duly accepted by the Magistrate and after lapse of time filed a fresh FIR against the petitioners. At best the Investigating Officer could have further investigated the case under Section 173(8) of the Code and could have submitted further report instead of filing a second FIR which was not permissible under law.

15. Therefore, this Court is of the opinion that the filing of the second FIR and the consequent investigation were not in accordance with law which have to be quashed.

16. In the result this petition is allowed and the second FIR, aforesaid and consequent investigation are hereby quashed leaving it open to the Investigating Officer to seek permission from the Court for further investigation and to file fresh report/reports, and proceed in accordance with law.


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