Delhi High Court
Anil Kumar Jain vs State (Nct Of Delhi) on 10 February, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: February 10, 2011
+ W.P.(CRL) No.1486/2010 & CRL.M.A.15640/2010
ANIL KUMAR JAIN ....PETITIONER
Through: Mr.Aditya Agarwal with Mr.Vikram
Aggarwal, Advocates.
Versus
STATE (N.C.T. OF DELHI ) ....RESPONDENT
Through: Mr.Akshay Bipin, Additional
Standing Counsel for the State/R.1.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. This is a petition under Articles 226/227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure with the following
prayer:-
".......to allow the present petition and set-aside the
impugned order dated 21.02.2008 passed by the Ld. Trial
Court and also the impugned order dated 14.09.2010 passed
by the Ld. Session Court and also quash the FIR No.75/08
dated 03.04.2008 registered at P.S. Gandhi Nagar."
2. Only issue raised by learned counsel for the petitioner is that the
second FIR No.75/2008 registered on the directions of the learned
W.P. (Crl.) No.1486/2010 Page 1 of 9
Metropolitan Magistrate at P.S. Gandhi Nagar is untenable because the
offence complained of in this FIR is an extension of the offence
complained of in FIR No.136/2007 P.S. Gandhi Nagar filed on the
complaint of Sanjay Gupta against one Ashok Gupta.
3. Relying upon the judgments in the matter of Babubhai Vs. State
of Gujarat & Ors., 2010 IX AD (S.C.) 145, T.T. Antony Vs. State of
Kerala and Others, 2001 SCC (Crl) 1048 and Mohd. Salim Vs. State,
III (2010) DLT (Crl.) 388, learned counsel for the petitioner submits that it
is a settled position in law that once FIR in relation to an offence is
registered, second FIR cannot be registered in relation to the same
offence. He submitted that in this case, the subsequent FIR is only an
extension of FIR No.136/2007 P.S. Gandhi Nagar, therefore it is liable to be
quashed.
4. Learned Shri Akshay Bipin, Additional Standing Counsel appearing
for the State submits that the offence, which is subject-matter of the
complaint in the earlier FIR No.136/2007 P.S. Gandhi Nagar is entirely
different as it was registered on the complaint of one Sanjay Gupta
against Ashok Kumar Gupta relating to transfer of the funds from his
account as well as the account of his father maintained in Vaish Coop.
Adarsh Bank Ltd. to the account of Ashok Kumar Gupta's daughter,
whereas the second FIR No.75/2008 P.S. Gandhi Nagar registered on the
directions of the learned Metropolitan Magistrate relates to
misappropriation of funds in furtherance of conspiracy amongst 17
accused persons, including Ashok Kumar Gupta to the tune of
W.P. (Crl.) No.1486/2010 Page 2 of 9
`21,54,629/- by diverting funds from various accounts maintained in the
bank. He further submitted that since the FIR relates to different
transactions, there is no bar under law for registration of the second FIR.
5. I have considered the rival contentions. Babubhai Vs. State of
Gujarat & Ors.(supra) was a case relating to clash between two groups
resulting in injuries to various persons. In the said matter, Hon'ble
Supreme Court has, inter alia, observed thus:-
"....13. In T.T. Antony v. State of Kerala and Ors., (2001) 6 SCC
181, this Court dealt with a case wherein in respect of the same
cognizable offence and same occurrence two FIRs had been
lodged and the Court held that there can be no second FIR and
no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or same
occurrence giving rise to one or more cognizable offences. The
investigating agency has to proceed only on the information
about commission of a cognizable offence which is first entered
in the Police Station diary by the Officer In-charge under Section
158 of the Code of Criminal Procedure, 1973 (hereinafter called
the Cr.P.C.) and all other subsequent information would be
covered by Section 162 Cr.P.C. for the reason that it is the duty
of the Investigating Officer not merely to investigate the
cognizable offence report 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 the Investigating
Officer has to file one or more reports under Section 173 Cr.P.C.
Even after submission of the report under Section 173(2) Cr.P.C.,
if the Investigating Officer comes across any further information
pertaining to the same incident, he can make further
investigation, but it is desirable that he must take the leave of
the court and forward the further evidence, if any, with further
report or reports under Section 173(8) Cr.P.C. In case the officer
receives more than one piece of information in respect of the
same incident involving one or more than one cognizable
offences such information cannot properly be treated as an FIR
as it would, in effect, be a second FIR and the same is not in
conformity with the scheme of the Cr.P.C. The Court further
observed as under:
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
W.P. (Crl.) No.1486/2010 Page 3 of 9
documentary) and forward a further report or reports to the
Magistrate.... 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.
......
17. 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 under Section 169 or 170 Cr.P.C., as the
case may be, and forwarding of a police report under Section
173 Cr.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."
6. The matter of T.T. Antony Vs. State of Kerala and
Others(supra) is also a case under IPC relating to unlawful assembly
indulging in assault and causing injuries to various persons. Besides other
provisions of law, in the said case, Hon'ble Supreme Court, inter alia,
observed thus:-
"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."
7. In the matter of Mohd. Salim Vs. State, III (2010) DLT (Crl.) 388
which also relates to the offence of murder, Single Judge of this Court,
inter alia, observed thus:-
"25. The direction of the Division Bench was challenged before
the Supreme Court. The Apex Court, while setting aside the
decision of the Division Bench, inter alia, observed as under:
18. An information given under Sub-section (1) of
Section 154 of Cr.P.C. is commonly known as First
Information Report (F.I.R.) though this term is not
used in the Code. It is a very important document.
And as its nickname suggests it is the earliest and
the first information of a cognizable offence recorded
by an officer in charge of a police station. It sets the
criminal law into motion and marks the
commencement of the investigation which ends up
with the formation of opinion under
Section 169 or 170 of Cr.P.C., as the case may be
and forwarding of a police report under
Section 173 of Cr.P.C. It is quite possible and it
happens not infrequently that more informations that
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 Cr.P.C. Apart from a vague information
by a phone call or a cryptic telegram, the information
first entered in the station house diary, kept for this
purpose, by a police officer in charge of a police
station is the First Information Report - F.I.R.
postulated by Section 154 of Cr. P.C. All other
informations 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 in the station house diary by the police
officer or such other cognizable offenses 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 F.I.R. 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
19. The scheme of the Cr.P.C. is that an officer in
charge of a Police Station has to commence
investigation as provided in Section 156 or 157 of
Cr.P.C. 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 evidence collected he has to form
an opinion under Section 169 or 170 of Cr.P.C., as
the case may be, and forward his report to the
Magistrate concerned under Section 173(2) Cr.P.C.
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 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 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 F.I.R. 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
F.I.R. 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. The Apex Court further observed as under:
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)Cr.P.C. It would clearly be beyond the
purview of Sections 154 and 156 Cr.P.C. 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 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."
8. There can be no dispute with the law enunciated in the above
judgments that two FIRs in relation to one occurrence constituting an
offence are not permissible under law. However, above referred
judgments are not applicable to the case in hand for the reason that
subject-matter of the earlier FIR No.136/2007 P.S. Gandhi Nagar is entirely
different from the subject-matter of FIR No.75/2008 P.S. Gandhi Nagar and
these two FIRs relate to different transactions constituting the offence.
9. FIR No.136/2007 P.S. Gandhi Nagar is in respect of the allegations of
misappropriation of `9,63,000/- by the accused Ashok Kumar Gupta by
manipulating the entries in the bank accounts of the complainant Sanjay
Gupta as well as his father and diverting the funds to his sister's account,
whereas the subsequent FIR No.75/2008 P.S. Gandhi Nagar relates to the
offence of criminal conspiracy hatched amongst 17 accused persons,
including Ashok Kumar Gupta in furtherance of which conspiracy, those
persons misappropriated a sum of `21,54,629/- by manipulating the
entries in the account books and diverting the funds relating to bank
accounts of various depositors to facilitate the misappropriation. On
comparative reading of the above noted FIRs, it is apparent that the FIRs
relate to different offences. If an employee of the bank indulges in
misappropriation of funds by falsifying the entries in the ledger account of
different customers at different dates, it cannot be said that all those
offences have been committed during the course of a single transaction.
Every such manipulation of account resulting in misappropriation
constitutes a distinct offence and for every misappropriation, an FIR can
be registered.
10. In the instant case also, earlier FIR No.136/2007 P.S. Gandhi Nagar
relates only to the diversion of funds from the account of the complainant
Sanjay Gupta and his father by making false entries. However, the second
FIR No.75/2008 P.S. Gandhi Nagar, which is sought to be quashed relates
to the diversion of funds in furtherance of a conspiracy amongst as many
as 17 accused persons to misappropriate the money by making false
entries in relation to the bank accounts maintained by different
customers, which obviously is an offence distinct from the offence
complained of in FIR No.136/2007 P.S. Gandhi Nagar.
11. In view of the above, it is apparent that the earlier FIR No.136/2007
P.S. Gandhi Nagar and the subsequent FIR No.75/2008 P.S. Gandhi Nagar
are not inter-related and these two FIRs are in respect of different
transactions constituting the offence. Thus, I find no infirmity in the
impugned order dated 21.2.2008 passed by learned Metropolitan
Magistrate as well as the order of the revision court dated 14.9.2010
declining to quash FIR No.75/2008 dated 3.4.2008 P.S. Gandhi Nagar.
12. Petition is dismissed, subject to cost of `5000/- to be deposited with
Delhi High Court Legal Services Committee within a week, failing which
the Registry shall initiate proceedings for recovery of the same.
(AJIT BHARIHOKE)
JUDGE
FEBRUARY 10, 2011
ks
