R 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5057 OF 2015 BETWEEN:
SRI K M PRASAD S/O LATE KARIGOWDA AGED ABOUT 55 YEARS RESIDING AT NO.39, VI-MAIN, BSNL OFFICE ROAD, TEMPLE ROAD, III BLOCK JAYALAKSHMIPURAM, MYSURU-570001. (FORMER LECTURER ATI LALITHA MAHAL, PALACE ROAD, MYSURU) ... PETITIONER (BY SRI: RAVI B.NAIK, SENIOR ADVOCATE A/W SRI: K.B.MAHESH KUMAR, ADVOCATE) AND 1. STATE BY ASSISTANT COMMISSIONER OF POLICE, DEVARAJA DIVISION, MYSURU CITY (REPRESENTED BY THE LEARNED SPP, HIGH COURT OF KARNATAKA BENGLAURU-560 001) 2. SMT. RASHMI, I.A.S. FORMER DIRECTOR GENERAL ADMINISTRATIVE TRAINING INSTITUTE ALSO :REGIONAL COMMISSIONER MYSURU DIVISION, MYSURU-570001.
PRESENTLY WORKING AS: SECRETARY DEPT. OF FOOD PROCESSING ROOM NO.457, 4TH FLOOR M S BUILDING DR. AMBEDKAR VEEDHI BENGALURU-560 001.
... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; R2-SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS INSOFAR AS THE PETITIONER IS CONCERNED IN C.C.NO.230/2015 BASED ON THE FIR REGISTERED IN CR. NO.313/2014 DATED 16.10.2014 PENDING ON THE FILE OF THE J.M.F.C.(III COURT), MYSORE, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 447, 427, 341, 323, 353, 354, 355, 307, 333 R/W 149 OF IPC ALONG WITH SECTION 3 OF THE PREVENTION OF DAMAGE TO PUBLIC PROPERTY.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This case has given rise to an interesting question touching the validity of second FIR in a criminal case.
2. The undisputed facts leading to the above question are that in respect of an incident that took place in the premises of Administrative Training Institute (hereinafter referred to as ‘ATI’) at Mysore on 15.10.2014 at about 3.45 p.m., the gunman of respondent No.2 lodged a written complaint before Nazarbad police. In this complaint, he narrated that that an employee of ATI committed suicide on 15.10.2014 and a case of unnatural death was registered. The body of the deceased employee was brought to the premises of ATI in an Ambulance at 3.30 PM which was informed to respondent No.2. Respondent No.2 came over and paid respects to the dead body. At that juncture, about 50-70 persons came to the spot in a tempo traveller and started to shout at respondent No.2. A few of the persons in this assembly were drunk, they hit respondent No.2 at her back with slippers, another person hit Respondent No.2 with hand on her shoulder. While he was escorting Respondent No.2 to safety, a slipper was also thrown at her and she was pushed around. Thereafter he along with the Police Inspector of Nazarbad Police Station and Car Driver Vinod, took respondent No.2 to safety and in this manner, about 50-60 persons who were members of an unlawful assembly namely, the erstwhile temporary workers of the House-Keeping Department and the erstwhile workers of the caterer by the name Bharani Caterers deterred a public servant from discharging her duty.
3. Based on the above complaint, a FIR was registered by respondent No.1-Police in Crime No.312/2014 at about 7.15 p.m. on 15.10.2014 for the offences punishable under Sections 143, 147, 341, 323, 324, 353, 354, 355 and 149 of Indian Penal Code.
4. On 16.10.2014 respondent No.2 herself lodged another written complaint in respect of the very same occurrence and this complaint was registered in Crime No.313/2014 against Bharani Catering Employees and 30 to 40 other members under Sections 143, 147, 341, 323, 324, 353, 354, 355, 427, 507 and 149 of Indian Penal Code R/W Section 3 of the Prevention of Damage to Public Property Act, 1854. In this complaint, respondent No.2 alleged that at about 3.30 p.m. when the body of the deceased employee of ATI was brought to ATI premises, respondent No.2 went there to pay her last respects. At that juncture, 30 to 40 persons arrived in a tempo traveller and in 2 to 3 cars. Those persons were not the relatives of the deceased employee. They were under the influence of alcohol and a videographer accompanied those persons. They were in the company of the erstwhile caterer by name Bharani Caterers and made unlawful entry into the premises of ATI. They used foul language against her, assaulted her with hands and slippers, pushed her and caused her injuries. When she was attacked, her gunman and driver safe-guarded her. Her official car bearing registration No.KA 55-G-1962 was damaged, it was pre- planned attack to cause her grievous injuries and to prevent her from discharging her duty and in the process an attempt was also made on her life.
5. This complaint was investigated by the police and a charge sheet was filed against 51 accused persons under Sections 143, 147, 341, 323, 324, 353, 354, 355, 427, 507 and 149 of Indian Penal Code r/w Section 3 of Prevention of Damage to Public Property Act, 1984. The petitioner herein is shown as accused No.36 in the charge sheet.
6. The contentions of the petitioner is that he was working in a Social Welfare Department as Joint Director. He was deputed to ATI, Mysore, to teach certain subjects to the candidates undergoing training at the ATI as a faculty member. Due to certain personal reasons, he sought earned leave for a period of 40 days on 20.5.2014 and the same was granted based on his application to be availed between 7.6.2014 till 31.7.2014. In the meanwhile, the Director Smt Amita Prasad was transferred out of ATI and respondent No.2 took charge as Director General of ATI on 7.6.2014. On 15.10.2014 one gazetted officer of ATI by name Venkatesh committed suicide in the premises of ATI. The petitioner reached the ATI premises at about 3.45 p.m. on 15.10.2014. There was utter chaos prevailing inside the premises as the near and dear relatives of the deceased who had gathered in the premises were getting restless. They were heaping abuses against respondent No.2 for being the root cause and abetting suicide of the deceased and squatted in front of the official car of respondent No.2 who had by then paid respects to the dead body and was on her way back and the police personnel were acting as mute spectators. The petitioner could not even pay his last respects due to the commotion that prevailed and he had to go away.
7. The argument of the learned Senior Counsel appearing for the petitioner is that the petitioner has been falsely implicated in the alleged incident with an ulterior motive. In respect of the same offence, two FIRs have been registered. In law, second FIR registered at the instance of respondent No.2 and the consequent investigation undertaken by respondent No.1-police has vitiated the entire proceedings. In the complaint filed by the gunman of respondent No.2, overt acts were attributed to the staff members of the erstwhile caterer M/s.Bharani Caterers but after taking charge as Director General of ATI, respondent No.2 started to make wild allegations against her predecessors in office. When these allegations did not hold water, respondent No.2 was waiting for an opportunity to strike at the erstwhile Director General Smt Amita Prasad and the employees who were discharging their duties during her tenure. Respondent No.2 used the incident as a weapon to take action against her predecessor in office and other employees. The petitioner has been made a scapegoat in the official tussle between respondent No.2 and her predecessor in office. The investigation conducted in the instant case is neither fair nor impartial. The statement of the persons who were stated to have been present at the scene of occurrence has not been recorded. Respondent No.2 has ensured that respondent No.1 would record the statements of the witnesses in her favour. The natural witnesses namely the employees of ATI have not given any statement implicating the petitioner. Investigation is done in a manner with an object of helping respondent No.2 with oblique motive. Thus, the prosecution instituted against the petitioner being malafide, vindictive and obliquely motivated and there being no prima facie material to show the involvement of the petitioner, the learned Senior Counsel prayed for quashing of the proceedings initiated against the petitioner in exercise of the powers under Section 482 of Cr.P.C.
8. In support of his submissions, the learned counsel has placed reliance on the decisions of the Hon’ble Supreme Court in T.T.Antony – vs – State of Kerala and others (2001) 6 Supreme Court Cases 181, Anju Chaudhary – vs – State of Uttar Pradesh and Another (2013) 6 Supreme Court Cases 384 and emphasized that when the police transgressed their statutory power of investigation, the High Court under Section 482 of Cr.P.C. or under Articles 226 and 227 of the Constitution of India in appropriate cases can interdict the investigation to prevent abuse of the process of Court or otherwise to secure the ends of justice.
9. Refuting the above contentions, the learned SPP appearing for respondent No.1 has sought to justify the action initiated against the petitioner contending that the investigation conducted in the case does not suffer from any error or illegality warranting interference by this court.
10. Learned Additional SPP in support of his submission has mainly relied on the order passed by the learned Magistrate accepting the B report submitted by the investigating officer in Crime No.312/14. During the course of hearing the learned Addl. SPP has produced the order sheet in Crime No.312/14 and the B summary report submitted by the Asst. Commissioner of Police, Mysore City and highlighted that the Investigating Agency did not conduct any investigation in Crime No.312/14 and hence, the submission of the charge sheet in Crime No.313/14 does not suffer from any error or illegality as sought to be made out by the petitioner and thus sought for dismissal of the petition.
11. In support of his submission learned Additional SPP has referred to the decision of the Hon’ble Supreme Court in Manoj Kumar – vs – State of Uttarakhand (2019) 5 Supreme Court Cases 667 and has pointed out that the issue raised by the learned Senior Counsel as to ‘whether the FIR and investigation in pursuance of second FIR should be straightaway quashed or should it require a scrutiny during trial on issue of prejudice to the accused, and truthfulness of evidence collected on the basis of second FIR?’ is referred to a larger Bench and thus sought to dismiss the petition.
12. Learned Senior counsel appearing for the petitioner however has pointed out that in Manoj Kumar case supra, the larger Bench declined to go into the above question as it was found that in the said case, no second FIR was filed and therefore, the issue having already been set-at-rest by the Hon’ble Supreme Court in T.T.Antony’s case as well as in Anju Chaudhary v. State of Uttar Pradesh and Another (2013) 6 Supreme court cases 384, prayed for quashing the investigation and the charge sheet submitted by respondent No.1 pursuant to the second FIR.
13. I have bestowed my careful though to the rival submissions made at the Bar and have carefully scrutinized the material on record in the light of the principles laid down in the Authorities relied on by the learned counsels appearing for the parties.
14. The legal position as enunciated in the above decision is indisputable. Law is now well settled that there cannot be two FIRs against the same accused in respect of the same incident. But when there are rival version in respect of the same episode, it was held by the Hon’ble Supreme Court in Kari Choudhary v. Sita Devi (2002) 1 SCC 714 that they would normally take the shape of two FIRs and investigation can be carried on under both of them by the same investigating agency. This ratio was not followed in the later decision rendered by the Hon’ble Supreme Court in Amitbhai Anil Chandra Shah case v. CBI (2013) 6 SCC 348 wherein in para 58.5 it was held as under :-
“58.5. The first information report is a report which gives first information with regard to any offence. There cannot be any second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.”
15. In Manoj Kumar’s case, the Hon’ble Supreme Court has explained the rationale behind the above principle and in paragraph 12 of the judgment it is observed thus :-
“12. The principle in criminal jurisprudence requires a fair and truthful investigation. If an investigating agency which has been conferred the power to investigate on the basis of an FIR, if a second FIR as regard the same transaction is introduced, as viewed, it is likely to be abused i.e. keeping in mind the interest of the accused.”
16. In T.T.Antony’s case, the Hon’ble Supreme Court has summarized the position of law as under :-
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of 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 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 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.
(underlining supplied) Here itself we may pause for a while and notice that what the Hon’ble Supreme Court has emphasized in the above decision is that when investigation is underway or final report under Section 173(2) of the Code has been forwarded to the Magistrate, investigation based on the second or successive FIRs would furnish a good ground to quash the investigation based on second FIR.
17. The judgment in T.T.Antony’s case was further clarified by the three judge bench of the Supreme Court in Upkar Singh v. Ved Prakash And Others (2004) 13 Supreme Court Cases 292 wherein at paragraph 17 it is held as under :-
“It is clear from the words emphasized hereinabove in the above quotation, this Court in the case of T.T.Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further 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 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.”
(emphasis supplied) 18. Thus it could be deciphered from the above decisions that the Supreme Court has frowned upon the registration of the second FIR and consequent investigation thereon for the reason that investigation having already started based on the first FIR, a further complaint against the same accused will amount to an improvement on facts which is likely to prejudice the accused. Thus it is clear from the above ratio that in order to attract the mischief of second FIR, investigation in the first FIR should have been underway or a final report must have been submitted thereon. Sequentially, it follows that if the investigation is not commenced on the first FIR, the investigation based on the second FIR does not get tainted. In none of the above decisions this issue had arisen for consideration of the Court. Nevertheless, what emanates from the ratio laid down in the above decisions is that, it is not the registration of multiple complaints, but commencement of the investigation that makes all the difference. Needless to say, that registration FIR and investigation are two different stages in a criminal trial. In this context it may be useful to refer to the decision of the Hon’ble Supreme court in Kari Choudhary – vs – Mst.Sita Devi and Others, (2002) 1 Supreme Court Cases 714, At para 23, it is observed as under :-
23. Be that as it may, if the law laid down by this Court in T.T Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the code.
19. Similar view is taken in Rameshchandar Nandlal Parikh v. State of Gujarat, (2006) 1 SCC 732, wherein the Hon’ble Supreme Court held that the subsequent FIR cannot be prohibited on the ground that some other FIR has been filed against the petitioner in respect of other allegations filed against the petitioner.
20. Dealing with such contingencies in Anju Chaudhary – vs – State of Uttar Pradesh and Another in paragraph 25, it is held as under :-
25. In the instant case, it is seen in regard to the incident which took place on 20.5.1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by police in the course of the investigation and its evidentiary value.
(Underlining supplied) 21. In the same decision, in paragraph 23, it is observed thus :
“This Court also had the occasion to deal with the situation where the first FIR was a cryptic one and later on, upon receipt of a proper information, another FIR came to be recorded which was a detailed one. In this case , the Court took the view that no exception could be taken to the same being treated as an FIR. In Vikram v. Sate of Maharashtra, (2007) 12 SCC 332 the Court held that “it was not impermissible in law to treat the subsequent information report as the first information report and act thereupon”. In Tapinder Singh v.State of Punjab (1970) 2SCC 113 also, this Court examined the question as to whether cryptic anonymous and oral messages, which do not clearly specify the cognizable offence, can be treated as FIR, and answered the question in the negative.”
22. Thus it is clear from the above precedents and the scheme of the code that there is no inflexible rule that in every case, investigation conducted on the basis of a second FIR is to be treated as null and void. As in the instant case, the investigating officer having not conducted any investigation into the first information report lodged by the gunman of respondent No.2 in Cr.No.312/2014 and before commencement of investigation in Cr.No.313/2014 having submitted a ‘B’ report to the Magistrate in Cr.No.312/2014 in my view, merely on the ground that the first information report was submitted by the gunman of the respondent No.2 in Cr.No.312/2014, it cannot be held that the investigation conducted in Cr.No.313/14 is tainted and bad in law.
23. A word of caution. The above conclusion should not be understood to mean that the investigating officer has unbridled discretion to proceed with the investigation into any one of the multiple FIRs at his whims and fancy. The law undoubtedly is clear that it is always the first information report which leads to the investigation. If for any reason, the investigation officer chooses not to investigate into the first information report, the same may call for a scrutiny during trial on the issue of prejudice to the accused and truthfulness of the investigation conducted by the investigating officer on the basis of the second FIR, but the same cannot be a reason to straightaway quash the investigation conducted on the basis of the second FIR. In the instant case, as no investigation was conducted in Cr.No.312/2014, I do not find any good ground to uphold the contentions urged by the learned senior counsel for the petitioner.
Consequently the petition fails. No other contentions are urged during the argument warranting interference in the matter. As a result, the petition is dismissed.
Sd/-
JUDGE rs