A single Judge Bench of Justice VG Arun of Kerala High Court while dismissing a petition on 8 June 2021, has ruled in the case of VS Achuthanandan vs State of Kerala that a second FIR based on the very same allegations cannot be registered, more so when the first FIR has been quashed on merits.
Factual Background
VS Achuthanandanis- the former Chief Minister of Kerala approached the Court against the order of the Enquiry Commissioner and Special Judge, Thiruvananthapuram dismissing the complaint filed by the petitioner against respondents under the Prevention of Corruption Act. During the period of 2013-14, the second respondent (Oommen Chandy) was the Chief Minister while respondents 3 to 5 were high ranking officials in the government.
The challenge in this Criminal Miscellaneous Case was against the order of the Enquiry Commissioner and Special Judge, Thiruvananthapuram dismissing the complaint filed by the petitioner against respondents 2 to 9. The petitioner, a former Chief Minister of the State, had raised the allegation that the sewerage pumping main line of the Kerala Water Authority which was laid diagonally through the 6th respondent’s property was shifted to a part of this property, which effectuated construction over a larger area. It was contended that this shift enabled all respondents to gain an undue pecuniary advantage by reducing government property into their possession.
It was further alleged that the accused by their actions and omissions, committed offences punishable under Section 120B IPC read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. The Court also came to know that prior to the filing of this petition, another public-spirited citizen filed a complaint before the Lok Ayukta.
The Counsel for the petitioner contended that it was improper to reject the present FIR without conducting a preliminary enquiry. The decision of the Apex Court in Lalita Kumari v State of U.P. [(2014) 2 SCC 1] was relied upon to substantiate this submission.
Reasoning and Decision of the Court
The Court noted that a comparison of the averments in the FIR and the complaint revealed that the allegations were substantially the same. The only difference was that the complaint contained more details, which difference was immaterial in view of the settled legal position that an FIR need not be a compendium of all facts.
Observing that the Court was justified in rejecting the FIR, the Court stated,
“In such circumstances, the petitioner's prayer, if allowed, will result in the registration of a second FIR on the very same set of facts.”
The legality in registering a second FIR on the same set of facts was considered by the Apex Court in T.T. Antony v State of Kerala [(2001) 6 SCC 181]. Paragraphs 20 and 27 of the judgment, which are contextually relevant reads as under:
“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.
xxxxxx
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.”
The Court also noted that the contention based on Lalita Kumari was also misplaced since the question considered by the Constitution Bench was regarding the duty of the police to register FIR on receipt of information regarding the commission of cognisable offence/s. The legality or otherwise of registering a second FIR based on the same set of facts had not arisen for consideration therein.
“A second FIR based on the very same allegations cannot be registered, more so when the first FIR has been quashed on merits.”
Case Details
Name: VS Achuthanandan v. the State of Kerala
Case No.: CRL. MC No. 4692 of 2019 and CRMP 1418/2015 Of Enquiry Commissioner & Special Judge, Thiruvananthapuram
Bench: Justice VG Arun
Picture Source : https://miro.medium.com/max/700/1*smR6Qt26fhiJQB5LRfkWPw.jpeg
