Subash Chandra Srivastava Vs. the State of Bihar and anr. - Court Judgment

Excerpt:
- - is illegal and bad in law and, therefore, the court cannot take cognizance on the basis of such investigation. only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of section 154 cr p. ghanshyam prasad, j.1. heard.2. this is an application under section 482 cr.p.c. to quash the order of cognizance dated 29.6.2006 passed by c.j.m. siwan in hussainganj p.s. case no. 54 of 2006 thereby and thereunder cognizance under section 302/34 i.p.c. and 27 of the arms act has been taken against the petitioner and others.3. it appears that on 28.3.2006 in the evening an incident took place at badram bazar under hussainganj p.s., siwan in which some miscreants attacked one sant atma ram mukhiyar with fire arms. the injured sant ram mukhiya was immediately brought in sadar hospital from where he was referred to p.m.c.h., patna. however, he died in course of the treatment.4. it further appears that one srinath manjhi, chaukidar of barhan mahal on the same night at about 9.00 p.m. lodged fardbeyan before hussainganj police station alleging therein, apart from attack on sant ram mukhiya, that one of the miscreants was caught and was lynched by villagers upon which the police registered case bearing no. 52 of 2006 under section 304/34 i.p.c. against unknown.5. on 29.3.2006 at about 9.00 a.m. after death of sant mukhiya, one vidya bhushan prasad, uncle of the deceased lodged fardbeyan before pirbahore police station, patna. the pirbahore police forwarded the same to hussainganj police station upon which also the police registered case bearing no. 54 of 2006 under section 302/34 i.p.c. against this petitioner and others. in the said fardbeyan, specific allegation has been made against the petitioner and some others about commission of murder of sant atma ram mukhiya. the police after investigation submitted chargesheet in the aforesaid case bearing no. 54 of 2006 and accordingly, the learned c.j.m. has taken cognizance against the petitioner & ors. whereas the earlier case bearing no. 52 of 2006 is still under investigation.6. the submission of the learned counsel for the petitioner is that the fardbeyan lodged by vidya bhushan prasad is not the earliest or first information of the incident in point of time. the earliest information of the incident of cognizable offence is the fardbeyan lodged by chaukidar upon which the police has already registered case bearing no. 52 of 2006. therefore, subsequent statement made by vidya bhushan prasad about the same incident before pirbahore police station cannot be treated as first information report as there cannot be a second f.i.r. of the same incident of same cognizable offence and the police had no power to register separate and fresh case on the basis of later statement of vidya bhushan prasad and submit chargesheet. investigation and forwarding chargesheet under section 173 cr.p.c. on the basis of second f.i.r. is illegal and bad in law and, therefore, the court cannot take cognizance on the basis of such investigation. the learned counsel has placed reliance upon an apex court decision reported in 2001 s.c. 2637 (t.t. antony v. state of kerala and ors.).7. on perusal of fardbeyan of both the police cases bearing nos. 52 and 54 of 2006, it would appear that both are with regard to same incident or occurrence in which the deceased sant mukhiya was attacked by miscreants with fire arms. it would also appear that the fardbeyan of 52 of 2006 lodged by chaukidar was the first information in point of time upon which the police registered case and started investigation. on the next day, i.e. on 29.3.2006 fardbeyan of case no. 54 of 2006 was lodged by vidya bhushan prasad before pirbahore police. thus, fardbeyan of case no. 54 of 2006 is a second f.i.r. upon which the cognizance in question has been taken by the court below.8. the apex court in above decision has considered the scheme of investigation enumerated in cr.p.c. and has held that there cannot be a second f.i.r. for the same incident and court cannot take cognizance upon such f.i.r. paragraphs 18, 20 and 27 of the judgment are relevant which are as follows:18. it is suite possible and it happens not infrequently that more informations than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. in such a case he need not enter every one of them in the station house diary and this is implied in section 154 of cr.p.c. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the first information report - f.i.r. postulated by section 154 of cr.p.c. all other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of cr.p.c. no such information/statement can properly be treated as an fir and entered in the station house diary again, as it would in effect be a second fir and the same cannot be in conformity with the scheme of the cr.p.c.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 of cr.p.c. only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of section 154 cr p.c. thus there can be no second fir and consequently there can be no fresh investigation or 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 on 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 cr.p.c.27. in our view a case of a 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 underway 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 cr.p.c. or under article 226/227 of the constitution.9. thus, from above law laid down by the apex court, it is quite apparent that neither the police had power to register separate case upon later statement of vidya bhushan prasad nor court had power to take cognizance upon such second f.i.r. it is contrary to the law and, therefore, it is fit to be quashed under inherent power of the court.10. accordingly, this application is allowed and the impugned order is hereby quashed. however, it is made clear that materials including statement of witnesses collected in case no. 54 of 2006 shall be used in case no. 52 of 2006 in accordance with law for submission of final form. the i.o. of case no. 52 of 2006 is also directed to complete the investigation of case no. 52 of 2006 and submit final form at the earliest.

Judgment:

Ghanshyam Prasad, J.

1. Heard.

2. This is an application under Section 482 Cr.P.C. to quash the order of cognizance dated 29.6.2006 passed by C.J.M. Siwan in Hussainganj P.S. Case No. 54 of 2006 thereby and thereunder cognizance under Section 302/34 I.P.C. and 27 of the Arms Act has been taken against the petitioner and others.

3. It appears that on 28.3.2006 in the evening an incident took place at Badram Bazar under Hussainganj P.S., Siwan in which some miscreants attacked one Sant Atma Ram Mukhiyar with fire arms. The injured Sant Ram Mukhiya was immediately brought in Sadar Hospital from where he was referred to P.M.C.H., Patna. However, he died in course of the treatment.

4. It further appears that one Srinath Manjhi, Chaukidar of Barhan Mahal on the same night at about 9.00 P.M. lodged fardbeyan before Hussainganj Police Station alleging therein, apart from attack on Sant Ram Mukhiya, that one of the miscreants was caught and was lynched by villagers upon which the police registered case bearing No. 52 of 2006 under Section 304/34 I.P.C. against unknown.

5. On 29.3.2006 at about 9.00 A.M. after death of Sant Mukhiya, one Vidya Bhushan Prasad, uncle of the deceased lodged fardbeyan before Pirbahore Police Station, Patna. The Pirbahore police forwarded the same to Hussainganj Police Station upon which also the police registered case bearing No. 54 of 2006 under Section 302/34 I.P.C. against this petitioner and others. In the said fardbeyan, specific allegation has been made against the petitioner and some others about commission of murder of Sant Atma Ram Mukhiya. The police after investigation submitted chargesheet in the aforesaid case bearing No. 54 of 2006 and accordingly, the learned C.J.M. has taken cognizance against the petitioner & Ors. whereas the earlier case bearing No. 52 of 2006 is still under investigation.

6. The submission of the learned Counsel for the petitioner is that the fardbeyan lodged by Vidya Bhushan Prasad is not the earliest or first information of the incident in point of time. The earliest information of the incident of cognizable offence is the fardbeyan lodged by Chaukidar upon which the police has already registered case bearing No. 52 of 2006. Therefore, subsequent statement made by Vidya Bhushan Prasad about the same incident before Pirbahore Police Station cannot be treated as first information report as there cannot be a second F.I.R. of the same incident of same cognizable offence and the police had no power to register separate and fresh case on the basis of later statement of Vidya Bhushan Prasad and submit chargesheet. Investigation and forwarding chargesheet under Section 173 Cr.P.C. on the basis of second F.I.R. is illegal and bad in law and, therefore, the court cannot take cognizance on the basis of such investigation. The learned Counsel has placed reliance upon an apex court decision reported in 2001 S.C. 2637 (T.T. Antony v. State of Kerala and Ors.).

7. On perusal of fardbeyan of both the police cases bearing Nos. 52 and 54 of 2006, it would appear that both are with regard to same incident or occurrence in which the deceased Sant Mukhiya was attacked by miscreants with fire arms. It would also appear that the fardbeyan of 52 of 2006 lodged by Chaukidar was the first information in point of time upon which the police registered case and started investigation. On the next day, i.e. on 29.3.2006 fardbeyan of case No. 54 of 2006 was lodged by Vidya Bhushan Prasad before Pirbahore Police. Thus, fardbeyan of case No. 54 of 2006 is a second F.I.R. upon which the cognizance in question has been taken by the court below.

8. The apex court in above decision has considered the scheme of investigation enumerated in Cr.P.C. and has held that there cannot be a second F.I.R. for the same incident and court cannot take cognizance upon such F.I.R. Paragraphs 18, 20 and 27 of the judgment are relevant which are as follows:

18. It is suite possible and it happens not infrequently that more informations than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C.

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 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154 Cr P.C. Thus there can be no second FIR and consequently there can be no fresh investigation or 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 on 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 Cr.P.C.

27. In our view a case of a 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 underway 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 Cr.P.C. or under Article 226/227 of the Constitution.

9. Thus, from above law laid down by the apex court, it is quite apparent that neither the police had power to register separate case upon later statement of Vidya Bhushan Prasad nor court had power to take cognizance upon such second F.I.R. It is contrary to the law and, therefore, it is fit to be quashed under inherent power of the court.

10. Accordingly, this application is allowed and the impugned order is hereby quashed. However, it is made clear that materials including statement of witnesses collected in case No. 54 of 2006 shall be used in case No. 52 of 2006 in accordance with law for submission of final form. The I.O. of case No. 52 of 2006 is also directed to complete the investigation of case No. 52 of 2006 and submit final form at the earliest.