1. Perusal of the order-sheet records that despite several orders, notices issued to opposite party no.2 has not been returned back after service nor any body has appeared on his behalf till date.
2. Learned counsel for the applicant states that since the impugned first information report had been lodged in the official capacity by the first informant/opposite party no.2 and probably, he must have retired from service, notice issued to opposite party no.2 has returned back at all times.
3. This application under Section 482 Cr.P.C. has been filed to quash the charge-sheet dated 20th August, 2008 in Case No. 7710 of 2008 arising out of Case Crime No. 457 of 2008, under Sections 420, 468, 467 and 471 I.P.C., Police Station-Quarsi, District-Aligarh.
4. Heard Mr. Syed Farman Ahmad Naqvi, learned counsel for the applicant and Mr. Amit Singh Chauhan and Mr. Prashant Kumar, learned Additional Government Advocates for the State as well as perused the entire materials available on record.
5. Brief facts, as born out from the record, are that a first information report has been lodged on 27th May/June, 2008 by Pramod Kumar in the capacity of Deputy Commandant, 45th Vahini P.A.C. Aligarh for the alleged incident dated 23rd April, 1988 against the applicant with the allegation that on 23rd April, 1988, the applicant, namely, Md. Yusuf Khan, S/o Late Mohd. Sultan Khan, R/o village Chhetarpur, Police Station-Sakaldeehan, District-Chandauli, having been appointed as cook in the P.A.C. Department, was posted at Aligarh. At the time of appointment, the applicant had disclosed his forged date of birth as "01th November, 1969" while concealing his correct date of birth i.e. "3rd January, 1965" as also he had disclosed his qualification as Class IX passed while concealing that he was declared fail in the High School Examination. The aforesaid facts had also been verified from the transfer certificate issued by the Principal, Janta Higher Secondary School, Boobash Dheena. At the time of appointment he had also filed an affidavit, wherein he had undertaken that all the facts in the form of information furnished by him and documents submitted by him were true and genuine, whereas after verification it was found that all were forged. For the aforesaid forgery committed by the applicant, the informant had also conducted a preliminary enquiry and after enquiry, on the basis of statements and records it was found that after misleading the department, he had obtained appointment on the basis of forged and fabricated documents and filed a false affidavit, while concealing his correct date of birth and qualification. Seeing the grievous offence, as committed by the applicant, the informant has lodged the first information report against the applicant, which was registered as Case Crime No. 457 of 2008, under Sections 420, 468, 467 and 471 I.P.C., Police Station-Quarsi, District-Aligarh. After conducting statutory investigation of the aforesaid case crime number, under Chapter XII Cr.P.C., the Police has submitted charge sheet against the applicant on 20th August, 2008 against which, present application, under Section 482 Cr.P.C. has been filed.
6. On the present matter being placed before this Court, on 10th April, 2009, a Coordinate Bench of this Court passed following order:
"Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 20.08.2008 of Case Crime No. 457 of 2008, Case No. 7710 of 2008, under Sections 420, 468, 467, 471 I.P.C., Police Station Quarsi, District Aligarh.
It is contended by learned counsel for the applicant that at the time of appointment of the applicant under Dying in Harness Rules, the applicant submitted all his educational certificates to the opposite party no.2 and thereafter, the opposite party no.2 on 01.09.2006 lodged an F.I.R. in Case Crime No. 620 of 2006, under Sections 420, 464, 466, 467, 468, 471 I.P.C., against which the applicant filed a Criminal Misc. Writ Petition before the Division Bench of this Court and this Court had granted interim order on 04.10.2006 and thereafter, final report has been submitted in the aforesaid case on 04.12.2006. It is next contended by learned counsel for the applicant that thereafter, the applicant proceed on medical leave and when the applicant sent a letter for joining, the opposite party no.2 again lodged an F.I.R. in case Crime No. 457 of 2008, under Sections 420, 467, 468, 471 I.P.C. on 27th June, 2008 with the same allegation as was made in the earlier F.I.R. dated 01.09.2006. It is last contended by learned counsel for the applicant that lodging of second F.I.R. and submission of charge-sheet is bad in law and cannot be sustained.
Issue notice to opposite party no.2 returnable within a period of four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Opposite party no.2 may also file counter affidavit within the same period.
As prayed by learned counsel for the applicant one week thereafter, is granted for filing rejoinder affidavit.
List immediately, after expiry of the aforesaid period before appropriate Bench.
Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case."
7. Mr. Syed Farman Ahmad Naqvi, learned counsel for the applicant has informed the Court that for the same offence, as alleged to have been committed by the applicant, departmental proceedings were also initiated against the applicant and after enquiry, the applicant has been terminated from service. Against the termination order, the applicant has approached this Court by means of a writ petition, which is still pending before this Court.
8. Learned counsel for the applicant further informed the Court that for the same offence, as alleged to have been committed by the applicant, a first information report had been lodged on 1st September, 2006 by Ramyash Singh, in the official capacity as Assistant Commandant, 45th Vahini, P.A.C. Aligarh under Sections 420, 464, 466, 467, 468 and 471 I.P.C., Police Station Quarsi, District-Aligarh, which has been registered as Case Crime No. A 91 of 2006. After conducting statutory investigation, under Chapter XII Cr.P.C., the Police has submitted final report on 4th December, 2006. Learned counsel for the applicant further informed that after submission of the Police report in the aforesaid case, the applicant proceeded on medical leave and when the applicant sent a letter for joining, along with medical report, mentioning his fitness, the opposite party no.2 (informant in the present case) has lodged the first information report which has been registered as Case Crime No. 457 of 2008, under Sections 420, 468, 467 and 471 I.P.C., Police Station-Quarsi, District-Aligarh, in which charge-sheet has been submitted on 20th August, 2008 against which the present application, under Section 482 Cr.P.C., has been filed.
9. It is submitted by Mr. Naqvi, learned counsel for the applicant that the second first information report dated 27th May/June, 2008 for the same cause of action/offences/incident could not have been lodged and entertained as law prohibits lodging of the second first information report in respect of the same offence. To bolster the contention that the second FIR could not have been entertained, the learned counsel for the applicant has commended this Court to the following decisions of the Apex Court:
(1) In Kari Choudhary Versus Most. Sita Devi & Others; AIR 2002 SC 441;
(2) T.T. Antony v. State of Kerala and others reported in (2001) 6 SCC 181;
(3) Pandurang Chandrakant Mhatre and others v. State of Maharashtra reported in (2009) 10 SCC 773;
(4) Babubhai v. State of Gujarat and others reported in (2010) 12 SCC 254; and (5) Amitbhai Anil Chandra Shah Vs. Central Bureau of Investigation & Another, reported in (2013) 6 SCC 348.
10. Mr. Naqvi, learned counsel for the applicant, therefore, submits that in view of the settled law as laid down in various judgments by the Apex Court, the impugned charge-sheet dated 20th August, 2008 submitted in pursuance of the second first information report lodged on 23rd April, 2008 against the applicant for the same offence, cannot be legally sustained and is liable to be quashed.
11. Mr. Amit Singh Chauhan and Mr. Prashant Kumar, learned A.G.As. for the State, per contra, has vehementally opposed the submissions as urged by the learned counsel for the applicant, by submitting that there is no absolute prohibition in law for lodging of a second FIR and, more so, when allegations are made from different spectrum or, for that matter, when different versions are putforth by different persons and there are different accused persons. In support of their plea, they have placed reliance upon the judgment of the Apex Court in the case of Surender Kaushik & Others Versus State of Uttar Pradesh & Others reported in (2013) 5 SCC 148.
12. This Court has considered the submissions as urged by the learned counsel for the applicant and the learned A.G.A. for the State as well as gone through the entire materials brought on record.
13. Before coming to the merits of the submissions made by the learned counsel for the parties, it would be relevant to refer Chapter XII of the Code, which deals with information to the police and their powers to investigate. As provided under Section 154 of the Code of Criminal Procedure (hereinafter referred as the "Code/Cr.P.C."), every information relating to commission of a cognizable offence, either given orally or in writing is required to be entered in a book, to be kept by the officer-in-charge of the concerned police station. The said FIR, as mandated by law, should pertain to a cognizable case. Section 2(c) of the Code defines "cognizable offence" which also deals with cognizable cases.
14. For ready reference, Sections 2 (c), 154 and 156 (3) Cr.P.C., which are relevant for deciding the present application, read 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;
"154. Information in cognizable cases.
(1) 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 by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."
15. If the primary requirement is satisfied, an FIR is to be registered and the criminal law is set in motion and 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 on the basis of a direction issued by the learned Magistrate under Section 156(3) of the Code can be registered.
16. For apposite appreciation of the issue raised, it is necessary to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited.
17. In Kari Chaudhary (Supra), the Apex Court has observed that of course it is settled law that there cannot be two first information reports against the same accused in respect of same case, but when there are rival versions in respect of same episode, they would normally take the shape of two different first information reports and investigation can be carried on under both of them by the same investigating agency.
18. For ready reference, paragraph nos. 11 and 12 of the judgment of the Apex Court in the case of Kari Choudhary (Supra) read as follows:
"11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is 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 on under both of them by the same investigating agency. Even that apart, the report submitted by the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court reading the new discovery made by the police during investigation the persons not named in FIR No. 135 are the real culprits. The quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.
12. Even otherwise the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under Sub-section (2) of Section 173 on a previous occasion. This is clear from Section 173(8) of the Code."
(emphasis added)
19. In T.T. Antony (supra), it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, came to hold that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code and, therefore, 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. It was further observed that 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 of the Code.
20. It would be worthwhile to reproduce paragraph nos. 20, 28 and 35, in the case of T.T. Antony (Supra), the Apex Cour, which read as follows:
""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 Cr.P.C only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. 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 Cr.P.C.
28...........................In our view, in sending information in regard to the same incident, duly enclosing a copy of the report of the commission of inquiry, to the Inspector General of Police for appropriate action, the Additional Chief Secretary adopted the right course of action. Perhaps the endorsement of the Inspector General of Police for registration of a case misled the subordinate police officers and the said letter with regard to the incident of November 25, 1994 at Kuthuparamba was registered again under Section 154 of Cr.P.C. which would be the second FIR and, in our opinion, on the facts of this case, was irregular and a fresh investigation by the investigating agency was unwarranted and illegal. On that date the investigations in the earlier cases (Crime Nos.353 and 354 of 1994) were pending. The correct course of action should have been to take note of the findings and the contents of the report, streamline the investigation to ascertain the true and correct facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 Cr.P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) Cr.P.C. to the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No.353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law.
35. 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."
(Emphasis added)
21. In Pandurang Chandrakant Mhatre (supra), the Apex Court referred to cases of T.T. Antony (supra), Ramesh Baburao Devaskar v. State of Maharashtra, and Vikram v. State of Maharashtra and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopaedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW-5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.
22. In Babubhai (supra), the Apex Court, after surveying the earlier decisions, 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, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.
23. In paragraph nos. 14, 17, 20 & 21, in the case of Babubhai (Supra), the Apex Court has observed as follows:
"14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292, this Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.
17. In Rameshchandra Nandlal Parikh Vs. State of Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.
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 underSection 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173Cr.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."
(Emphasis added)
24. In Amitbhai Anilchandra Shah (Supra), the Apex Court has clearly observed that there can be no second FIR, hence there can be no fresh investigation on receipt of every subsequent information in respect of same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences, therefore, second FIR can be held to be invalid and quashed, as per the scheme of Code of Criminal Procedure and fundamental rights of an accused provided under Articles 14, 20 and 21 of the Constitution of India.
25. In paragraph-37, 38 and 60 in the case of Amitbhai Anilchandra Shah (Supra), the the Apex Court has observed as follows:
"37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
"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 sub-section (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.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
38. Mr. Rawal, learned ASG, by referring T.T. Anthony (supra) 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. 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, re-affirmed in the following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC 567.
In C. Muniappan (supra), this Court explained "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.
60. In view of the above discussion and conclusion, the second FIR dated 29.04.2011 being RC No. 3(S)/2011/Mumbai filed by the CBI is contrary to the directions issued in judgment and order dated 08.04.2011 by this Court in Writ Petition (Criminal) No. 115 of 2009 and accordingly the same is quashed. As a consequence, the charge sheet filed on 04.09.2012, in pursuance of the second FIR, be treated as a supplementary charge sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Criminal) No. 5 of 2013."
(Emphasis added)
26. In Surender Kaushik (Supra) referred by the learned Additional Government Advocates for the State, the Apex Court has observed that the lodging of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. The rival versions in respect of same incident do not take different shapes and in that even, lodging of two first information reports is permissible. Thus counter-first information report in respect of same or connected incident is permissible.
27. For ready reference, paragraph nos. 24 and 25 in the case of Surender Kasuhik (Supra) is quoted herein-under:
"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
28. The instant case is required to be examined in the light of the aforesaid settled legal propositions for which it is necessary for this Court to examine the facts and circumstances giving rise to both the first information reports and the test of sameness is to be applied to find out whether both the first information reports 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 first information report is liable to be quashed. However, in case, the contrary is proved, where the version in the second first information report is different and they are in respect of the two different incidents/crimes, the second first information report is permissible. In case in respect of the same incident the accused in the first information comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.
29. If both the first information report reports dated 1st September, 2006 and 27th May/June, 2008 lodged against the present applicant are read together, it becomes clear that the incident was of 23rd April, 1988, when the applicant was appointed as cook in 45th Vahini P.A.C. Aligarh under Dying-in-Harness Rules and it was alleged in both the first information reports that the applicant had obtained appointment on the basis of forged and fabricated documents and affidavit while concealing his correct date of birth and qualification and for the aforesaid same offence punishable under Sections 420, 468, 467 and 471, both the first information reports have been lodged against the same accused i.e. applicant by the two officers of same department i.e. 45th Vahini P.A.C., Aligarh. Though the complainant/informant of both the aforesaid first information reports is different person, both the complainant/informant have lodged their respective first information report in their official capacity on behalf of the same department i.e. 45th Vahini P.A.C., Aligarh and not in their personal capacity.
30. After reading of the aforesaid facts and after applying the principle of sameness, this Court finds that both the first information reports relate to the same incident in respect of the same occurrence, therefore, the submissions made by the learned counsel for the applicant has substance. The second first information report dated 28th May/June, 2008 is liable to be quashed. The judgment relied upon by the learned Additional Government Advocates for the State in the case of Surender Kaushik (Supra) is not applicable in the facts of the present as in the instant case, there is no rival versions or any improvisation in respect of the same incident in both the first information reports.
31. In the light of the judgements of the Apex Court, referred to above, it is explicitly clear that the second first information report is cryptic and does not stand the test laid down by the Apex Court.
32. Accordingly, the present criminal misc. application succeeds and is allowed. The second first information report dated 28th May/June, 2008 and the impugned charge-sheet dated 20th August, 2008 in Case No. 7710 of 2008 arising out of Case Crime No. 457 of 2008, under Sections 420, 468, 467 and 471 I.P.C., Police Station-Quarsi, District-Aligarh, are quashed leaving it open for opposite party no.2 to file protest petition, if not already filed, in Case Crime No. 457 of 2008, under Sections 420, 468, 467 and 471 I.P.C., Police Station-Quarsi, District-Aligarh. In case the final report submitted by the Police in the said case has already been accepted by the court concerned, opposite party no.2 may file a fresh application for re-investigation of the matter in pursuance of the earlier first information report lodged by him against the applicant.
(Manju Rani Chauhan, J.) Order Date :- 27.11.2019 Sushil/-