Kerala High Court
K Sudhakaran vs State Of Kerala on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.REV.PET NO. 989 OF 2016
[AGAINST THE ORDER DATED 03.06.2016 IN S.C.NO.1473/2001 ON THE
FILE OF THE ADDITIONAL SESSIONS JUDGE-IV, THIRUVANANTHAPURAM
(CRIME NO.148/1997 OF THAMPANOOR POLICE STATION]
REVISION PETITIONERS/ACCUSED NOS.1 AND 3:
1 K.SUDHAKARAN (A1)
AGED 67 YEARS
S/O. RAMUNNI MESTHIRI, KUMBAKUDY HOUSE, NADAL, EDAKKAD.
2 RAJEEVAN (A3)
S/O. ACHUTHAN VAIDYAR,AYURVEDA SADANAM,
ILLATHUTHAZHE,THALASSERY.
BY ADVS.
S.SREEKUMAR (SR.)
M.MEENA JOHN
VIJU THOMAS
RESPONDENTS/COMPLAINANT, ACCUSED NO.5 AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
CHARGE SHEETED BY THE ASSISTANT COMMISSIONER OF POLICE,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OFKERALA, ERNAKULAM-682031
2 P.K. DINESAN, S/O. KUNJURAMAN,
KOYAMBURAM HOUSE,KOTTHUPARAMBU, KANNUR.
3 E.P. JAYARAJAN
S/O. KRISHNAN NAMBIAR,KEECHERI EDAMAL
PUTHIYAVEETIL,PAPPINISSERY, KANNUR.
BY ADVS.
FOR R1 BY SRI.S.U.NAZAR,SENIOR GOVT.PLEADER(SPECIAL
GOVT. PLEADER (CRIMINAL)
FOR R3 BY SRI.C.P.UDAYABHANU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 21.05.2024 PASSED THE FOLLOWING:
CRL.RP No.989 OF 2016 2
O R D E R
This Criminal Revision Petition was submitted by the accused
Nos. 1 and 3 in S.C No 1473/2001 on the files of Additional Sessions
Judge-IV, Thiruvananthapuram, which arises from Crime No.
148/1997 of Thampanoor Police station. The offence alleged against
the petitioners and the other accused is under section 120B of the
Indian Penal Code (IPC). The said crime was registered on the basis
of a private complaint submitted by the 3rd respondent herein before
the Judicial First Class Magistrate-III, Thiruvananthapuram, alleging
offences punishable under section 120B and section 307 of the
Indian Penal Code. The challenge in this case is against the order
dated 03.06.2016, passed by the learned Sessions Judge, rejecting
prayer sought by the petitioners to discharge from the case.
2. The facts which led to the filing of this Crl.R.P are as
follows:
2.1. The defacto complainant, the 3rd respondent herein, is one
of the prominent leaders of the political party named Communist
Party of India (Marxist) (CPI(M)). The 1st petitioner is the leader of
the Indian National Congress, which is a rival political party and the
2nd petitioner is alleged to be a close associate of the 1 st petitioner.
It is alleged that, the 1st and 2nd accused (another political leader,
who was earlier a leader of the CPI(M) and later left the said party to
form a separate political party), entered into a criminal conspiracy on
various dates between 28.03.1995 to 31.03.1995 at Thycaud Guest
House, Thiruvananthapuram, with the accused Nos. 3 to 5, to do
away with CW1 to CW3, due to their political enmity. In furtherance
of their criminal conspiracy, the accused Nos. 1 and 2 procured four
revolvers and entrusted the same to A4 and A5. Later, on knowing
that the 3rd respondent herein (CW1), was travelling from Delhi on
11.04.1995 by the train named Rajadhani Express, A4 and A5
managed to enter the said train and when the train was passing
through Chirala in Andhra Pradesh, on 12.04.1995 at about 10.a.m,
A4 and A5 approached the 3rd respondent and A4 fired at him. In the
said incident, the 3rd respondent sustained injuries.
2.2. In connection with the said incident, Chirala Railway
Police Station registered Crime No. 14/1995 under section 307 of the
IPC and later the investigation was handed over to the Inspector of
Police, CID, Special team, Hyderabad, who conducted an
investigation. In the said crime, apart from A4 and A5, the
investigation was conducted against the petitioners also. The 1 st
petitioner was granted anticipatory bail by the High Court of Andhra
Pradesh. The 2nd petitioner surrendered in the said crime and was
arrested accordingly. Later he was granted bail. However, after the
investigation, the Special Investigation Team, submitted a charge
sheet against the 4th and 5th accused in the present crime (accused
nos. 1 and 2 in Crime No 14/1995), before the Special Judicial First
Class Magistrate Court, Railways, Nellooor, for the offences
punishable under section 120B, 307 of the IPC and under section 25
(1) (b) and section 27 of the Arms Act. It was mentioned in the said
charge sheet that, the investigation against the associates of the
accused Nos. 4 and 5 including the petitioners herein, is in progress
and a separate requisition under section 173(8) of the Cr.P.C is
being made.
2.3. The said case was taken on file by the Special Judicial
First Class Magistrate (Railways), Nelloor and the same was
committed to the Sessions Court, Ongole. In the meantime, the 1 st
accused therein (4th accused herein) died and the charges were
framed against the 2nd accused therein (5th accused herein), for the
offences punishable under sections 120B,307 r/w 34 of the IPC and
section 7 read with section 27 of the Arms Act. After the trial, the
Principal Assistant Sessions Court, Ongole, vide judgment dated
01.02.2011 in S.C No.383/1998 (Annexure A4), found the 2 nd
accused therein (5th accused herein) guilty of the offences under
sections 307 r/w 34 and 120 B of IPC and section 7 read with section
27 of the Arms Act. Crl.A.No.24/2011 was filed by the convicted
accused against the same and the appellate court found him not
guilty for the offences under sections 120B, 307 read with section 34
of the IPC, but found him guilty for the offence under section 7 read
with section 25(1) A of the Arms Act.
2.4. During the period when the trial of SC.No. 383/1998 was
going on, after examination of CW1 as PW1 (the 3 rd respondent
herein), the prosecution submitted an application under section 319
of the Cr.P.C, for arraigning the petitioners herein as the accused
person, which was allowed by the trial court. Challenging the same,
the petitioners filed a Crl R.C No 1255/2006 before the High Court of
Andhra Pradesh, and it culminated in Annexure A1 order, by which
the order permitting the inclusion of the petitioners as accused, was
set aside. However, it was observed that the order of dismissal
would not preclude the investigation officer to file a fresh application
under section 319 of the Cr.P.C, for implicating the petitioners as
accused, during the course of the trial. The judgment passed by the
High Court of Andhra Pradesh was confirmed by the Honourable
Supreme Court as per Annexure A2 judgment.
2.5. Later, the 3rd respondent submitted an application before
the trial court under section 193 of the Cr.P.C, after the evidence in
the said case was over, to take cognizance against the petitioners
herein and one Biju. The same was dismissed by the Assistant
Sessions Court, as per order dated 12.07.2010 in Crl M.P No 14 of
2010 in S.C.No.383/1998. Even though the said order was
challenged by the 3rd respondent by filing Crl.R.C. No 1410/2010
before the High Court of Andhra Pradesh, the same was dismissed
by taking note of the fact that, by this time, the 3 rd respondent filed a
a private complaint before the Judicial First Class Magistrate
Court -III, Thiruvananthapuram, Crime No. 148/1997 was registered
against the petitioners, and after investigation, a final report was also
filed.
2.6. As mentioned above, in the meanwhile, the 3rd respondent,
filed a private complaint which was referred for investigation to
Thampanoor Police under section 156(3) Cr.P.C and after
investigation, a final report has been submitted against the said
accused persons for the offence under section 120B of the IPC,
which is now pending as S.C. No.1473/2001 before the Additional
Sessions Judge -IV, Thiruvananthapuram.
2.7. While so, the 5th accused, who faced the trial before the
Assistant Sessions Court, Ongole and was ultimately acquitted of the
offences under sections 120B and 307 read with 34 of the IPC, filed
an application seeking discharge in S.C.No.1473/2001. When the
said application came up for consideration, the petitioners also
sought for discharge (though no separate application was submitted
in this regard), which ultimately resulted in the order impugned in this
case, by which the 5th accused was discharged, as he already faced
the trial which culminated in acquittal, and the prayer for discharge
made by the petitioners were dismissed. It is to be noted that, in the
meantime, the 2nd and 4th accused passed away and therefore, at the
moment, the trial proposed to be conducted is against the petitioners
and the 2nd respondent only. This Crl.R.P is submitted by the
petitioners in such circumstances.
3. Heard Sri.S.Sreekumar, the learned Senior Counsel,
assisted by Adv. Viju Thomas, the learned Counsel for the
petitioners, Sri S.U. Nazar, the Senior Public Prosecutor [Special
Government Pleader (Criminal)] for the State and Sri.
C.P.Udayabhanu, the learned counsel for the 3rd respondent.
4. The main contention raised by the learned Senior Counsel
for the petitioners is that, the present proceedings are not legally
sustainable, since the FIR registered in Crime No.148/1997 by the
Thampannor police, is the second FIR, as there was already an FIR
in respect of the very same incident and offences, registered as
Crime No 14/1995 by Chirala Railway Police. The second FIR is not
permissible in law. It was also pointed out that, in the trial conducted
by the Assistant Sessions Court, Ongole, against the 5 th accused
herein, the materials relating to the allegation of the Criminal
Conspiracy involving the petitioners herein and the other accused
including the 5th accused (the 2nd accused in Crime No 14/1995)
were specifically examined and it was found that, the prosecution
could not establish any conspiracy between the petitioners and the
accused. The said finding was confirmed in the appeal also.
Therefore, filing a second FIR in respect of the very same
transactions is not legally sustainable, contends the learned Senior
counsel for the petitioners. Reliance was placed on the decisions in
Amitbhai Anilchandra Shah v. Central Bureau of Investigation and
another [ (2013) 6 SCC 348], and T.T Antony v. State of Kerala and
Another [ (2001) 6 SCC 181], in support of the said contention.
5. On the other hand, the learned Public Prosecutor, and the
learned counsel for the 3rd respondent, oppose the said contentions
by pointing out that, the petitioners were never charge sheeted and
faced the trial in earlier crime. In response to the contention
regarding the second FIR, it was contended by the respondents that,
criminal conspiracy was committed by the accused persons at
Thycaud Guest House, Thiruvananthapuram, which is within the
jurisdiction of the Thampanoor Police Station and the offence of
section 120B is a distinct offence, which can be independently tried.
As the petitioners were not even charge sheeted in the prosecution
before the Andhra Court, there cannot be any prohibition in instituting
a separate prosecution by registering another FIR, before the
investigating agency which is having territorial jurisdiction. It was
contended by placing reliance upon the decision rendered by the
Honourable Supreme Court in Nirmal Singh Kahlon v. State of
Punjab and others [ (2009) 1 SCC 441] that, when the police
authorities did not make a fair investigation, left out conspiracy
aspect from the purview of the investigation, and when it surfaced, it
was open for the State to conduct fresh investigation. The learned
Public Prosecutor also brought the attention of this Court to the
observation made by the Andhra Pradesh High Court in the order
passed in Crl. R.C No.1410/2010 filed by the 3 rd respondent, wherein
the challenge made by the 3 rd respondent, against the order
dismissing the application submitted by him under section 193 of the
Cr.P.C, was considered. It was pointed out that, the High Court of
Andhra Pradesh did not interfere in the impugned order, mainly
because of the reason that, the crime registered on the basis of the
private complaint submitted by the 3 rd respondent was pending trial
in Kerala and hence it may not be possible for the accused to face
the trial at two places for the same transactions and the offences.
Therefore, allowing the prayer of the petitioners would cause serious
prejudice to the 3rd respondent and this is the only remedy available
to him as of now, to redress his grievances, as the victim of the
crime. The learned Public Prosecutor also relied on the observations
made by the Honourable Supreme Court in Amar Nath Chaubey v.
Union of India and others [AIR 2021 SC 109], where the rights of
victims are discussed. The learned counsel for the 3rd respondent
also highlighted the limited scope in considering the contentions
raised in this petition, while exercising the revisional powers of this
court under section 397 and 401 of the Cr.P.C, particularly while
challenging an order refusing to discharge the accused. Reliance
was placed on the decisions rendered in Sanjaysinh Ramrao
Chavan v. Dattatray Gulabrao Phalke and others [(2015) 3 SCC
123], and State through Deputy Superintendent of Police v. R.
Soundirarasu [AIR 2022 SC 4218].
6. The learned counsel for the 3 rd respondent also highlighted
the matters that can be considered by the court at the time of
framing the charges and contended that, once a prima facie case is
made out, charge has to be framed, for which a meticulous
examination of the materials placed by the prosecution is not
necessary. It was also pointed out that while doing the said
exercise, the court can consider only the prosecution documents and
not the documents produced by the accused. However, in this case,
the petitioners rely upon the documents produced by them and their
contentions are not confined to the prosecution records. Reliance
was placed on the decision of this court in Peter K.C. v. State of
Kerala (2011 (2) KLT 68), which was rendered after referring to a
large number of decisions. The decision of the Honourable Supreme
Court in State of Orissa v Debendra Nath Padhi (2005 (1) KLT 80
(SC) was also relied on.
7. Thus, the first contention to be considered is whether the FIR
submitted in the present crime, namely Crime No.148/1997, can be
treated as a second FIR, for which the prohibition is applicable. One
of the objections raised by the respondents is that, since this revision
petition was filed challenging the order passed by the trial court
refusing the prayer for discharge, the adjudication of the contentions
can be made based on the prosecution records only and it was
pointed out that the contention of the petitioners cannot be
considered without examining the contents of the judgments passed
by the courts at Andhra Pradesh in Crime No. 14/1995 of Chirala
Railway Police station. As the consideration of this objection is
absolutely necessary before adjudicating the contentions raised by
the petitioners as to the legal validity of the FIR, I deem it appropriate
to consider the same at first. In this regard, the State and the 3 rd
respondent relied on the observations made by the Honourable
Supreme Court in Debenthra Nath Padhi's case (supra), wherein it
was held that, the accused has no right to produce any documents at
the time of framing the charges. However, as an answer to the said
contention, the learned Senior Counsel for the petitioners relies on
the decision in Rukmini Narvekar v. Vijaya Satardekar and others
[(2008) 14 SCC 1]. In the said decision, after referring to Debentha
Nath Padhi's case (supra), it was observed by the Honourable
Supreme Court as follows:
"28. ............... Thus in our opinion while it is true that
ordinarily defence materials cannot be looked into by the Court
while framing the charge in view of D.N Padhi's case (supra),
there may be some very rare and exceptional cases where
some defence material when shown to the trial court would
convincingly demonstrate that the prosecution version is totally
absurd or preposterous, and in such very rare cases the
defence material can be looked into by the court at the time of
framing the charges or taking cognizance."
8. Still further, in para 29 of the said decision, it was further
observed that, the court is justified in looking into such materials, if
the same convincingly establishes that the whole prosecution
version is totally absurd, preposterous or concocted. Thus, it is
evident that in some exceptional circumstances, the documents
relied on by the accused can be taken into consideration, while
framing the charge. Therefore, the question to be considered
whether this case falls within the "rare cases" as referred to in the
above decision and materials would "convincingly establish that the
whole prosecution version is totally absurd, preposterous or
concocted". In this regard, it is to be noted that, the documents
sought to be relied on by the petitioners-accused, relate to the
previous prosecution of the case by another investigating agency, in
respect of the very same incident and the judgments pronounced by
the competent courts in such proceedings. As far as the FIR and the
charge sheet filed in the previous case are concerned, the same
were already produced along with the final report in the present
crime and therefore the same form part of the prosecution records.
The other documents sought to be relied on by the accused, are the
judgment passed by the trial court in the said case after the trial, and
the judgment of the appellate court passed therein. The orders
passed by the Andhra Pradesh High and the Honourable Supreme
Court which were passed in connection with the said prosecution
were also sought to be relied on. Since the said judgments and
orders are the culmination of the FIR and final report in Crime No
14/1995 of Chirala Railway Police Station, or arising from the
prosecution in the said crime, such judgments and orders are
crucially relevant documents, as far as the rights of the
petitioners/accused are concerned. The fact that the FIR and final
report in Crime No.14/1995 form part of the prosecution records in
the present crime, fortifies the same. In this regard, the specific case
of the petitioners/accused is with regard to the registration of the
second FIR and also the findings entered by the courts concerned,
after appreciating the materials produced by another prosecution
agency in the previous crime registered with respect to the very
same transactions, which formed the basis of the present
prosecution. Therefore, I am convinced that this case comes within
the criteria referred to by the Honourable Supreme Court in Rukmini
Narvekar's case (supra) and hence, all the documents relied on the
by the petitioners have to be taken into account. Another aspect
which justifies the said finding is that, the trial court in the impugned
order, has already taken note of the said judgment passed by the
appellate court in the previous crime, and discharged the 5 th
accused, on the ground that he had already faced the trial, was
found not guilty of the offences alleged in this case and, thus, the
stipulations in section 300 of the Cr.P.C. apply.
9. Since I have already overruled the objections raised by
the respondents as referred to above, the next question to be
considered is whether the FIR filed in the present case amounts to
the second FIR to which, the prohibition as per the scheme of the
Cr.P.C applies. Before considering the said question in the facts and
circumstances of this case, it is profitable to examine the legal
position about the said question.
10. In T.T Antony's case (supra), The Honourable Supreme
Court considered the said question elaborately, after referring to a
large number of decisions in this regard, and in paras 18, 19 and 20,
the following observations were made
"18. An information given under sub-section (1) of Section 154
CrPC is commonly known as first information report (FIR) 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 in motion and
marks the commencement of the investigation which ends up
with the formation of opinion under Section 169 or 170 CrPC, as
the case may be, and forwarding of a police report under Section
173 CrPC. It is quite 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 CrPC. 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 -- FIR
postulated by Section 154 CrPC. 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 offences as may
come to his notice during the investigation, will be statements
falling under Section 162 CrPC. 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 CrPC. Take a
case where an FIR mentions cognizable offence under Section
307 or 326 IPC and the investigating agency learns during the
investigation or receives fresh information that the victim died, no
fresh FIR under Section 302 IPC need be registered which will be
irregular; in such a case alteration of the provision of law in the
first FIR is the proper course to adopt. Let us consider a different
situation in which H having killed W, his wife, informs the police
that she is killed by an unknown person or knowing that W is
killed by his mother or sister, H owns up the responsibility and
during investigation the truth is detected; it does not require filing
of fresh FIR against H -- the real offender -- who can be
arraigned in the report under Section 173(2) or 173(8) CrPC, as
the case may be. It is of course permissible for the investigating
officer to send up a report to the Magistrate concerned even
earlier that investigation is being directed against the person
suspected to be the accused.
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."
After making the said observations, the Honourable Supreme Court
proceeded to consider the observations made by the Honourable
Supreme Court in Ram Lal Narang v State (Delhi Administration)
[(1979) 2 SCC 322)] and later at para 27 of T.T Antony's case
(supra), the following observations were made.
"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[(1979) 2 SCC 322 :
1979 SCC (Cri) 479] 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."
11. The said question was again considered by the Honourable
Supreme Court in Amitbhai Anilchandra Shah's case (supra). That
was a case in which the question of the registration of second FIR
came up in connection with an FIR registered in respect of an
alleged fake encounter of one Tulsiram Prajapati, who allegedly
witnessed another alleged fake encounter of Sohrabuddin and
Kausarbi, in respect of which, another FIR was registered. In the
said case, after elaborately considering the statutory scheme of the
Cr.P.C. and various decisions rendered in this regard, it was
observed that, the second FIR and charge sheet are violative of
fundamental rights under Articles 14, 20 and 21 of the Constitution of
India, since the same relate to alleged offence in respect of which an
FIR had already been filed and the court has taken cognizance.
While arriving at the said finding, the Honourable Supreme Court
followed the observation made in C. Muniappan v. State of Tamil
Nadu [(2010) 9 SCC 567], where the Honourable Supreme Court
explained "consequence test" i.e, if an offence forming part of the
second FIR arises as a consequence of the offence in the first FIR,
then offences covered by both the FIRs are the same and
accordingly, the second FIR will be impermissible in law.
12. Thus, it can be seen that, the question of second FIR and
the prohibition in connection with the same, would arise not only in a
case where the FIRs are in relation to the same incident or same
transactions, but it can also be extended to an incident which
occurred as a consequence of the offence in the first FIR.
13. In Ram Lal Narang's case (supra), an exception was
carved out by the Honourable Supreme Court to the general
proposition that no second FIR can be registered, which was to the
effect that, during the course of investigation of the first FIR, if a
larger conspiracy is disclosed which was not part of the first FIR, a
second FIR can be registered.
14. Similarly, in Nirmal Singh Kahlon's case (supra) , which
was relied on by the learned Public prosecutor, it was observed that
a second FIR would lie, in a case where the first FIR does not
contain any allegation of criminal conspiracy.
15. In Anju Chaudhary v. State of U.P and others
(MANU/SC/1129/2012=2013 (1) KLT 549), it was held that, where
the incident is separate, offences are similar or different, or even
where the subsequent crime is of such magnitude that it does not fall
within the ambit and scope of the first FIR, then second FIR can be
registered. However in the said decision also, the general
proposition of law as to the prohibition of second FIR was upheld
through the following observations in para 15 which reads as follows:
15. On the plain construction of the language and scheme of
Sections 154, 156 and 190 of the Code, it cannot be construed or
suggested that there can be more than one F.I.R. about an
occurrence. However, the opening words of S.154 suggest that
every information relating to commission of a cognizable offence
shall be reduced to writing by the officer in-charge of a Police
Station. This implies that there has to be the first information
report about an incident which constitutes a cognizable offence.
The purpose of registering an F.I.R. is to set the machinery of
criminal investigation into motion, which culminates with filing of
the police report in terms of S.173(2) of the Code. It will, thus, be
appropriate to follow the settled principle that there cannot be two
F.I.R.s registered for the same offence. However, where the
incident is separate; offences are similar or different, or even
where the subsequent crime is of such magnitude that it does not
fall within the ambit and scope of the F.I.R. recorded first, then a
second F.I.R. could be registered. The most important aspect is
to examine the inbuilt safeguards provided by the legislature in
the very language of S.154 of the Code. These safeguards can
be safely deduced from the principle akin to double jeopardy, rule
of fair investigation and further to prevent abuse of power by the
investigating authority of the police. Therefore, second F.I.R. for
the same incident cannot be registered. Of course, the
Investigating Agency has no determinative right. It is only a right
to investigate in accordance with the provisions of the Code. The
filing of report upon completion of investigation, either for
cancellation or alleging commission of an offence, is a matter
which once filed before the court of competent jurisdiction attains
a kind of finality as far as police is concerned, may be in a given
case, subject to the right of further investigation but wherever the
investigation has been completed and a person is found to be
prima facie guilty of committing an offence or otherwise,
reexamination by the investigating agency on its own should not
be permitted merely by registering another F.I.R. with regard to
the same offence. If such protection is not given to a suspect,
then possibility of abuse of investigating powers by the Police
cannot be ruled out. It is with this intention in mind that such
interpretation should be given to S.154 of the Code, as it would
not only further the object of law but even that of just and fair
investigation. More so, in the backdrop of the settled canons of
criminal jurisprudence, re-investigation or de novo investigation is
beyond the competence of not only the investigating agency but
even that of the learned Magistrate. The courts have taken this
view primarily for the reason that it would be opposed to the
scheme of the Code and more particularly S.167(2) of the Code.
(Ref. Rita Nag v. State of West Bengal ((2009) 9 SCC 129) and
Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No.9185-
9186 of 2009 of the same date).
16. Thus, the legal principles that can be deduced from the
above decisions are that, the second FIR in respect of the very same
incident and forming part of the same transactions, cannot be
registered under normal circumstances except when the second FIR
is a counter case. As held in Amitbhai Anilchandra Shah's case
(supra) and C.Muniappan's case (supra), even in cases where the
second FIR is in respect of the incident which occurred as a
consequence of the incident which is the subject matter of the 1 st
incident, the second FIR cannot be registered. However, the second
FIR pertains to a conspiracy can be registered, in a case where the
conspiracy was not part of the first FIR. The second FIR can be
registered if the incident in the subsequent crime is beyond the
scope and ambit of the first FIR.
17. Now when coming to the facts of the case at hand, the
crucial aspect to be noticed is that, in Crime No.14/1995 registered
by Chirala Railway Police Station, the final report was filed against
the accused Nos. 4 and 5 herein, for the offences punishable under
sections 120B, and 307 of IPC and under section 25(1) (b) (a) and
section 27 of the Arms Act, which fact is clearly mentioned in
paragraph 2(m) of the Annexure A4 judgment passed by the
Assistant Sessions Court. The crime was registered against the
accused including the petitioners and the final report was filed
against the accused Nos. 1 and 2 therein (accused Nos. 4 and 5
herein), by keeping open the right of the investigation agency to
continue the investigation under section 173(8) Cr.P.C, as against
the petitioners. The trial court framed the charges against the
accused therein, for the offences punishable under sections 120B
and 307 read with 34 of the IPC and section 7 read with section 27
of the Arms Act. In Annexure A4 judgment, among the points
formulated by the learned Assistant Sessions Judge, the 3 rd point
was related to the conspiracy. The specific case of the prosecution in
the said case was that, the accused therein (accused Nos. 4 and 5
herein) stayed at Sridevi Tourist Home at Thiruvananthapuram
between 28.03.1995 to 31.03.1995. Thereafter they contacted the
1st petitioner by phone, who was in Government Guest House,
Thycaud, and occupying room numbers 103 and 107 along with the
2nd petitioner herein. Accused Nos.1 and 2 therein visited the
petitioners at the Guest House and entered into a conspiracy to
murder the leaders of CPI(M) including the 3rd respondent. It was also
alleged that, in pursuance to that conspiracy, the accused therein
and their associates (including the petitioners herein), have procured
a revolver from one P.K. Saleem, a resident of Kannur, which was
used for firing shots at the 3 rd respondent. In the first charge sheet,
witnesses were cited by the prosecution to establish the conspiracy
as mentioned above, though the petitioners herein were not
implicated in the said charge sheet. The trial court, after evaluating
the materials, came to a definite finding that, the prosecution failed to
establish the meeting of A1 and A2 with the other members (which
include the petitioners) whom the prosecution alleged that they are
part of conspiracy. However, the trial court found a criminal
conspiracy between accused Nos.1 and 2 therein and convicted the
2nd accused therein, for the offences including under section 120B of
IPC. In the appeal, the said conviction of the 2 nd accused (the 5th
accused herein) was set aside and the conviction was confined to
the offences under the Arms Act alone.
18. The FIR in Crime No. 148/1997 of the Thampanoor Police
Station was registered on the basis of a private complaint filed by the
3rd respondent herein. The instances of criminal conspiracies are the
same, but the only difference is that, as per the allegations in the
present FIR, in addition to the 3 rd respondent herein the said
conspiracy was intended to do away with the CWs. 2 and 3 therein
as well, who were the leaders of CPI(M). In addition to the witnesses
cited by the prosecution in the charge sheet in Crime No. 14/1995 of
Chirala Railway Police Station to prove the stay of the accused in
Sridevi Tourist Home and Thycaud Guest house, their meeting at the
Guest house and the procurement of weapon by the petitioners,
some additional witnesses were also cited in the present charge
sheet.
19. Thus, on a careful examination of the contents of both the
FIRs, it can be seen that the basic allegation of conspiracy is
centered around the meeting of the accused at Thycaud Guest
house, which was specifically referred to in the charge sheet
submitted in the final report submitted therein. The materials to prove
the said conspiracy were already examined by the Assistant
Sessions Court and found to be not satisfactory. Of course, the said
finding of the Assistant Sessions Court as such, cannot be a decisive
factor, as the trial therein was conducted against the 5 th accused
herein alone and the petitioners herein were not implicated as the
accused in the said final report. However, it is a fact that, the
investigation was conducted against the petitioners also in the first
FIR and the final report therein against the 1 st and 2nd accused
therein (4th and 5th accused herein) was filed, by keeping the right of
the police to conduct the further investigation against the petitioners
open. The said factor assumes importance when it comes to the
question of prohibition in registering the second FIR, in the light of
the legal position in this regard as discussed above.
20. As mentioned above, the basic allegation against the
petitioners is with respect to the conspiracy allegedly entered into by
the petitioners with the other accused including accused Nos.1 and 2
in Crime No. 14/1995 of Chirala Railway Police Station, which took
place at Thycaud Guest house, Thiruvananthapuram. The said
allegation was the subject matter of the first Crime, which was
investigated in detail, final report filed and the accused Nos.1 and 2
were found not guilty of the said conspiracy, as the prosecution failed
to establish the meeting of the said accused with the petitioners
herein. Even if the findings of the trial court and the appellate court
which dealt with the first FIR and final report are kept aside, the fact
that, the basic allegations in the second FIR, were in connection with
the very same issues in the first Crime and the final report, i.e, the
conspiracy by the accused at Thycaud Guest House, cannot be
ignored. In other words, even though, some additional witnesses
were cited by the prosecution in the second charge sheet, the point
to be established by the prosecution remains the same, i.e
the conspiracy at Thycaud Guest House, which was already a
subject matter in the first Crime. Thus, the irresistible conclusion
possible is that, both said FIRs are in relation to the very same
transactions and, therefore, the FIR in crime No.148/1997 of
Thampanoor Police station is the second FIR on the very same
transactions which were already investigated into as against the
persons including the petitioners.
21. Of course, it is true that, in the present crime, there is also
an allegation that, in addition to the 3 rd respondent herein, the
accused also entered into a conspiracy to do away with CWs 2 and 3
herein, who are other leaders of the CPI(M). However, that allegation
by itself would not authorize the registration of the second FIR. First
of all, in the first Crime itself the prosecution case was to the effect
that the conspiracy was to do away with the leaders of the CPI(M)
including the 3rd respondent. This would mean that, the prosecution
story relating to the conspiracy was not confined to the 3 rd
respondent alone, even as per the first FIR and charge sheet.
22. Even if it is assumed for argument's sake that the conspiracy
alleged in the first Crime was confined to the 3rd respondent herein
alone, that by itself cannot be a ground to treat the same as different
transaction altogether. This is particularly because, in both the Crimes
and final reports, the instances and place of conspiracy are the
same. The circumstances under which a second FIR can be
registered are well settled by the decisions of the Honourable
Supreme Court referred to above. As per the same, if the offences
are distinct or it is of such a magnitude and is beyond the scope and
ambit of the first FIR, registration of the second FIR would be
permissible. In Nirmal Singh Kahlon's case (supra), it was also
observed that second FIR can be registered in cases where it was
lodged in wider canvass involving conspiracy of large number of
persons. Here the facts of the case do not indicate the existence of
any such circumstances. In this regard, the observations made by
the Honourable Supreme Court in S.Swamirathnam v. State of
Madras (AIR 1957 SC 340) at paragraph 7, which were specifically
referred to and followed in Amitbhai Anilchandra Shah's case (surpa)
are relevant and the same read as follows:
"7. On behalf of the appellant Abu Bucker it was contended
that there has been misjoinder of charges on the ground that
several conspiracies, distinct from each other, had been
lumped together and tried at one trial. The advocate for
Swamirathnam, however, did not put forward this submission.
We have examined the charge carefully and find no ground for
accepting the contention raised. The charge, as framed,
discloses one single conspiracy, although spread over several
years. There was only one object of the conspiracy and that
was to cheat members of the public. The fact that in the course
of years others joined the conspiracy or that several incidents
of cheating took place in pursuance of the conspiracy did not
change the conspiracy and did not split up a single conspiracy
into several conspiracies. It was suggested that although the
modus operandi may have been the same, the several
instances of cheating were not part of the same transaction.
Reliance was placed on the case of Sharpurji
Sorabji v. Emperor [AIR 1936 Bom 154], and on the case
of Choragudi Venkatadri v. Emperor [ILR (1910) 33 Mad 502] .
These cases are not in point. In the Bombay case, no charge of
conspiracy had been framed and the decision in the Madras
case was given before Section 120-B was introduced into the
Penal Code. In the present case, the instances of cheating
were in pursuance of the conspiracy and were therefore parts
of the same transaction."
23. Thus, it can be safely concluded that, merely because, in
the second FIR and final report, there is an allegation of conspiracy
to do away with some more persons, that by itself cannot be a
reason to treat the same as a completely distinct offence warranting
or justifying the registration of a second FIR. The additional
witnesses cited in the second final report also cannot be treated as a
justification for the registration of the second FIR. This is particularly
because, the prohibition is against the registration of FIR itself and
the additional witnesses usually comes during the investigation.
Moreover, as mentioned above, the basic allegation in both Crimes
remains the same, i.e the accused persons met at Thycaud Guest
House and conspired to do away with the leaders of the CPI(M), in
furtherance of the same, revolvers were procured, in execution of the
common design, accused Nos.4 and 5, followed the 3rd respondent
and the 4th accused shot at him using one of revolvers so procured,
thereby attempted to committed the murder of the 3 rd respondent.
So long as the prosecution stories in both cases share a single
platform, the allegations are against the very same persons, the FIR
in Crime No.148/1997 of Thampanoor Police station has to be
treated as the second FIR to which the prohibition, as contemplated
as per the scheme of the Cr.P.C as discernible from sections 154,
155, 156, 157, 162 169, 170 and 173 thereof, is applicable.
Therefore, it has to be held that, the registration of FIR in Crime No.
148/1997 was not at all justifiable and consequently all further
proceedings pursuant to the same are also not legally sustainable.
24. While making the above observations, I am conscious of
the fact that, what is being considered is a Criminal Revision Petition
challenging the order passed by the learned Sessions Judge,
rejecting the prayer sought by the petitioners for discharge under
section 227 of the Cr.P.C. The learned Public prosecutor as well as
the learned Counsel for the 3rd respondent, vehemently argued about
the limitations in considering the Revision petition at the stage of
charge. However, in State through Superintend of Police v. R.
Soundirarasu (AIR 2022 SC 4218==2022 (5) KLT SN 36 (C.No.34), the
Honourable Supreme Court specifically considered the question
regarding the manner in which the revisional powers are to be
exercised at the time of Charge. After referring to Munna Devi v.
State of Rajasthan and another [(2001) 9 SCC 631], it was observed
that, the Revisional Powers cannot be exercised in casual or
mechanical manner. It was further observed that, a Revisional Court
cannot undertake meticulous examination of the material on record
as it is undertaken by the trial court or the appellate court, and the
said power can be exercised only if there is any legal bar in
continuing the proceedings or if the facts as stated in the charge
sheet are taken to be true on their face value and accepted in their
entirety do not constitute the offences.
25. In this case, I have already found that, there is a legal bar
in proceeding against the petitioners herein, in view of the fact that,
the FIR based on which the entire prosecution case is built, amounts
to a second FIR in respect of the very same transactions covered by
the FIR and final report in Crime No.14/1995 of Chirala Railway
Police Station.. Hence the invocation of the Revisional Powers of this
Court is justified.
26. Even if it is assumed for argument's sake that, the
questions to be considered in this case, are beyond the revisional
powers of this Court, nothing would preclude this Court from
exercising the inherent powers of this Court under section 482
Cr.P.C or supervisory powers under Article 227 of the Constitution of
India, to avoid miscarriage of justice. In this regard, it is to be noted
that, in State of Haryana v. Bhajan Lal and Others [(1992) Supp 1
SCC 335), the Honourable Supreme Court at paragraph 102, was
pleased to enumerate the seven situations under which, the inherent
or extra ordinary powers of this Court has to be exercised in the
matter of criminal prosecution. One of the said situations, namely
serial No (6), is to the effect that, where there is an express legal bar
engrafted in any of the provisions of the Code or the Act concerned,
to the institution and continuance of the proceedings. In this case,
there is a specific bar in instituting the second FIR and, therefore, the
prosecution against the petitioners are vitiated, as it violates the
rights of the petitioners including their fundamental right under Article
21 of the Constitution of India. Therefore, this is a fit case in which
invocation of the inherent/extra ordinary powers of this Court is
justified, if necessary.
27. It is also to be noted that, the State as well as the 3 rd
respondent have a case that, 3rd respondent's rights as a victim of
crime are also to be protected. The attention of this Court was
brought to the observations made by the Honourable Supreme Court
in Amar Nath Chaubey v. Union of India and others [AIR 2021 SC
109,] wherein it was observed that, a fair investigation is but a
necessary concomitant of Article 14 and 21 of the Constitution of
India. The observation made in Nirmal Singh Kahlon's case (supra),
to the effect that, a victim of crime is equally entitled to a fair
investigation, was also relied on. The efforts taken to ensure the
prosecution against the petitioners were highlighted by the State and
the 3rd respondent. The attempt made by the prosecution to implicate
the petitioners as accused in Crime No.14/1995 of Chirala Railway
Police Station, invoking powers under section 319 Cr.P.C and the
steps taken by the 3rd respondent under section 193 of the Cr.P.C to
take cognizance against the petitioners in the said crime were also
highlighted. It was also pointed out that the challenge made by the
3rd respondent against his application under section 193 Cr.P.C was
declined by the High Court of Andhra Pradesh in Crl.R.C.No.
1410/2010, mainly on the ground that the prosecution was pending
against the petitioners before the court in Kerala, i.e., the
proceedings which are the subject matter of this petition.
28. However, even while upholding the right of the 3 rd
respondent/victim to have a fair investigation, the contentions of the
respondents cannot be accepted as such. This is because, the
redressal of the grievances of the victim can only be made by
invoking the remedies available to him under law and such redressal
cannot be by adopting a procedure which is expressly prohibited by
law. As far as the observations made by the High Court of Andhra
Pradesh in Crl.R.C No.1410/2010 are concerned, the same cannot
be understood to be meant to give legal validity to a proceeding,
which is expressly prohibited by the provisions and scheme of the
Cr.P.C. Moreover, while making the said observations, legal
infirmities in the proceedings pending before the court in Kerala were
also not brought to the notice of the said court and the same was not
a subject matter before the said court. In such circumstances, I am
not inclined to accept the contentions of the State as well as the 3 rd
respondent in this regard.
29. It is also to be noted in this regard that, in the private
complaint submitted by the 3rd respondent, based on which Crime
No.148/1997 was registered by the Thampanoor Police, the main
grievance highlighted by the 3rd respondent was with respect to lack
of proper investigation by the Andhra Pradesh Police in Crime No
14/1995 as to the conspiracy. However, it is evident from the records
that, an investigation was indeed conducted in respect of the
conspiracy. Of course it is true that, even though further investigation
was proposed against the petitioners herein, they were never charge
sheeted. However, even if the same is treated as an instance of lack
of proper investigation, still, the same would not justify the
registration of a second FIR, but on the other hand, at the most, it
could be a case where, orders for further investigation in Crime
14/1995 of Chirala Railway Police Station should have been sought.
Therefore, I am not inclined to accept the contentions of the State
and the 3rd respondent in this regard.
In such circumstances, on the reasons mentioned above, this
Crl.R.P is allowed by setting aside the order dated 03.06.2016 in S.C
No.1473/2001 passed by the Additional Sessions Court-IV,
Thiruvananthapuram, to the extent it declined the prayer to
discharge petitioners. It is ordered that, the petitioners herein i.e the
accused Nos. 1 and 3 in Crime No. 148/1997 of Thampanoor Police
Station, which is now pending as the Sessions Case referred to
above, are hereby discharged from the offences alleged against
them in the said crime.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
