Filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance.
Hon’ble Apex Court in Ram Lal Narang vs. State (Delhi Administration) [(1979) 2 SCC 322], K. Chandra Shekhar vs. Patna High Court Cr. WJC No.1226 of 2018 dt.31-08-2018 13 State of Kerala and Ors. [(1998) 5 SCC 223], Mithabahi Pashabhai Patel and others vs. State of Gujarat [(2009) 6 SCC 332] and Anju Chaudhary vs. State of U.P. and Anr. [(2013) 6 SCC 384].
Permissibility of institution of second FIR
The Supreme Court considered the permissibility of institution of second FIR in great detail in Amitabhai Anilchandra Shah vs. CBI [(2013)6 SCC 348]. While deciding the case of Amitbhai Anilchandra Shah, the Supreme Court considered its earlier decisions in (2013)6 SCC 384: Anju Chaudhary vs. State of U.P., (2013)5 SCC 148: Surender Kaushik vs. State of U.P., (2011)5 SCC 79: Narmada Bai vs. State of Gujarat, (2010)14 SCC 444: Chirra Shivraj vs. State of A.P., (2010)12 SCC 254: Babubhai vs. State of Gujarat, (2010)9 SCC 567: C. Muniappan vs. State of T.N., (2010)2 SCC 200: Rubabbuddin Sheikh vs. State of Gujarat, WP(Crl.) No. 6 of 2007, order dated 12.8.2010 (SC) Rubabbuddin Sheikh vs. State of Gujarat, (2009)1 SCC 441: Nirmal Singh Kahlon vs. State of Punjab, (2004)13 SCC 292 : Upkar Singh vs. Ved Prakash, (2002)1 SCC 714 : Kari Choudhary vs. Sita Devi, (2001)6 SCC 181: T.T. Antony vs. State of Kerala, (1979)2 SCC 322: Ram Lal Narang vs. State (Delhi), AIR 1963 SC 1850: State of A.P. vs. Cheemalapati, AIR 1961 SC 1241: State of A.P. vs. Kandimalla, and AIR 1957 SC 340.
AIR 2002 SC 441/(2002) 1 SCC 714/JT 2001 (10) SC 361
When there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted by the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court reading the new discovery made by the police during investigation the persons not named in FIR No. 135 are the real culprits. The quash the said proceeding merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.[Para 11]
Aggrieved person can file a counter case
In Upkar Singh vs. Ved Prakash and others, (2004) 13 SCC 292, the correctness of the judgment in T.T.Anthony was doubted and the same was referred to a three-Judge bench by the Chief Justice of India. The three-Judge bench concluded that the view expressed in T.T.Anthony did not preclude an aggrieved person from filing a counter case and drew attention to Para 27 of the judgment in T.T.Anthony, wherein while discussing the scope of Section 154, 156 and 173(2) of the Cr.PC, the following was expressed :-
“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 Cr.PC or under Articles 226/227 of the Constitution.”
And the three-Judge Bench further observed that it was therefore clear that in T.T.Anthony’s case, it has not been expressed that the registration of a complaint in the nature of a counter case is excluded from the purview of the Cr.PC. It was 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 the investigation in this regard would have already started and a further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint and hence will be prohibited under Section 162 of the Code and this prohibition which has been noticed in T.T.Anthony did not apply to a counter complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident. The apex court also drew attention to the observation in Kari Choudhary vs. Sita Devi, (2002)1 SCC 714, to the following effect:-
” 11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No.135 ended in a final report the police had no authority to register a second FIR and number it as FIR No.208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No.208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No.135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No.135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.”
Further, the apex court drew attention to the observation of the apex court in State of Bihar vs. J.A.C.Saldanha, (1980) 1 SCC 554, thus:-
The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power confirmed upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1.”
The apex court held that if the Police concerned refused to register a counter complaint, it was open to the Magistrate, at any stage, to direct the Police to register a complaint brought to his notice and investigate the same. And further that even in regard to a complaint arising out of a complaint on further investigation, if it was found that there was a larger conspiracy than the one referred to in the previous complaint, then a further investigation under the Court culminating in another complaint was permissible.
The apex Court also drew attention to the observation in Ram Lal Narang vs. State, 1979(2) SCC 322, wherein it was held that even in cases where a prior complaint is already registered, a counter complaint is permissible and it went further and held that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of the investigation and expressed the opinion that the case in T.T.Anthony did not consider the legal right of an aggrieved person to file a counter claim, but on the contrary, from the observations in the said judgment, it clearly indicated that filing a counter case was permissible and expressed, to hold otherwise, namely, that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, it would lead to serious consequences. The Court has given a hypothetical example namely, that if in regard to a crime committed by the real ac cused, 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 and secondly, he would be deprived of his legitimate right to bring the real accused to book and this was certainly not the purport of the Cr.PC.
Law does not prohibit filing or entertaining of the second complaint even on the same facts, provided the earlier complaint has been decided on the basis of insufficient material
In Shiv Shankar Singh vs. State of Bihar and another, 2012 AIAR (Criminal)13, the facts were as follows:
A dacoity was committed in the house of the appellant and his brother wherein his nephew was killed by the dacoits and valuable properties were looted. The Police had reached the place of occurrence two hours after the incident. A First Information Report was lodged on the same day by the appellant naming 2 along with 15 other persons, for offences punishable under Sections 396 and 398 of the IPC. However, the appellant’s brother and the father of the deceased had approached the court under Section 156(3) of the Cr.PC in respect of the same incident. Pursuant to the orders of the court, a First Information Report was lodged on 29.12.2004, wherein it was alleged that the appellant along with the son of the second complainant and his maternal uncle, had killed Gopal Singh, as they were after certain immovable property. Investigation in pursuance of both the reports ensued. When the investigation was pending, the appellant filed a protest petition, but did not pursue the matter further. After completion of the investigation, the Police filed a final report under Section 173 of the Cr.PC on 9.4.2005, to the effect that the case was totally false and Gopal Singh had been killed for property disputes. After investigation, the other First Information Report was filed by the father of Gopal Singh, the deceased and a charge-sheet was filed against the appellant and others. The trial was concluded in favour of the accused persons therein. Five months later, a second protest petition was filed in respect of the final report filed earlier. The Magistrate after examining a number of witnesses, took cognizance and issued summons to the respondent and others. Being aggrieved, the accused had approached the High Court contending that a second protest petition was not maintainable. The same having been allowed, the complainant filed an appeal before the Supreme Court. After referring to the case-law, it was held that the law does not prohibit filing or entertaining of the second complaint even on the same facts, provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, a second complaint would not be maintainable wherein the earlier complaint has been disposed of on a full consideration of the case of the complainant on merits.