WHETHER THERE CAN BE TWO FIRS IN THE SAME INCIDENT? – Some important case laws

WHETHER THERE CAN BE TWO FIRS IN THE SAME INCIDENT? – Some important case laws

1.    It is well established that a second FIR is not permissible under law on the same facts. Of course, if there is a counter case by the opposite party that can be the basis of the second FIR arising out of the same incident; but,  in  such  a  case,  there  are  two  counter  FIRs  arising  out  of  the  same  incident  or  out  of  the  same transaction, but the actual facts from the point of view of the opposite parties would be different. However, filing of the second FIR by the same party on the basis of the same facts is not permissible under law. So, there cannot be two FIRs by the same party on the same facts.

2.    In the case of T.T. Antony v. State of Kerala and Ors., 2001(6) SCC 181 the Hon’ble SC observed whereby More than one information were given to Police Officer in respect of same incident, The Police Officer need not enter everyone of them in Station House Diary. The information first entered in Station House Diary is the FIR postulated by Section 154 Criminal Procedure Code. Any other information received during investigation will fall under Section 162 Criminal Procedure Code and cannot be registered as FIR and entered in Station House Diary as it would in effect be a second FIR.

“19. An information given under sub-section (1) of Section 154 of Criminal Procedure Code 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 nick name suggests it is the earlier 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 Criminal Procedure Code, as the case may be, and forwarding of a police report under Section 173 of Criminal Procedure Code 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 of Criminal Procedure Code 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 a police station is the First Information Report - F.I.R. postulated by Section 154 of Criminal Procedure Code 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 of Criminal Procedure Code 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 Criminal Procedure Code Take a case where an FIR mentions cognizable offence under Section 307 or 326 Indian Penal Code and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 Indian Penal Code 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) of Criminal Procedure Code as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused.”

However, there are certain situations whereby the second FIR can be filed, For Instance:

1.    IN THE CASE OF NIRMAL SINGH KAHLON V. STATE OF PUNJAB, AIR 2009 SC 984, Registration of a second FIR was held to be permissible because the second FIR lodged by CBI  (as against the first FIR registered by local police) was on a wider canvas involving conspiracy of a large number of persons, and it was lodged after holding a detailed preliminary inquiry and the CBI had collected a large number of materials, recorded a large number of statements, enumerates as many as fifteen categories of irregularities involving as many as fourteen accused persons, and there were different versions and new discovery was made on factual foundations.

2.    IN THE CASE OF SURENDER KAUSHIK V. STATE OF U.P., (2013) 5 SCC 148, it was held that: “…the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter­FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused  subsequent to the registration of the  case under the Code, for an investigation in that regard would have already commenced and allowing registration of  further  complaint  would  amount  to  an  improvement  of  the  facts  mentioned  in  the  original complaint. As is further made clear by the three­Judge Bench in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292], the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.”

3.    IN UPKAR SINGH V. VED PRAKASH & ORS., 2004(4) R.C.R.(CRIMINAL) 294, whereby the Hon’ble SC observed that Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala & Ors. has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T.T. Antony v. State of Kerala & Ors. in paragraph 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) Criminal Procedure Code, this is what the Court observed :-

"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 offences 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 Criminal Procedure Code or under Articles 226/227 of the Constitution." (Emphasis supplied).

18. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala & Ors. has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. In our opinion, this Court in that case only held 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 an investigation in this regard would have already started and further complaint against the same accused will amount an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident.

24. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused 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 consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code.

25. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.

4.    IN KARI CHOUDHARY V. MST. SITA DEVI & ORS., 2002(1) SCC 714 discussing this aspect of law held :-

"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 offence alleged have been committed and, if so, who have committed it". (Emphasis Supplied)

5.    IN STATE OF BIHAR V. J.A.C. SALDANNA, 1980 AIR SC 326, this Court considering Section 3 of the Police Act and Section 173(8) of the Code held :-

"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 conferred 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."

This clearly shows that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and an investigate the same.

6.    IN THE CASE OF RAM LAL NARANG V. STATE (DELHI ADMINISTRATION), 1979(2) SCC 322 held :-

"Even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a large conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible".

7.    IN ANJU CHAUDHARY VS. STATE OF U.P. (2013) 6 SCC 384 the question was whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence? While answering the aforesaid question, the Bench held :

“The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence, which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of ‘sameness’ to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences.

If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc. 

To illustrate such a situation, one can give an example of the same group of people committing theft in a similar manner in different localities falling under different jurisdictions. Even if the incidents were committed in close proximity of time, there could be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, riots may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj v. State of Andhra Pradesh[(2010) 14 SCC 444], the Court took the view that there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report. 

8.    The Supreme Court, in P SREEKUMAR V STATE OF KERALA AIR 2018 SC 1482, has held that there is no prohibition in law to file a second FIR in relation to the same incident, if it was not filed by the same person, who had filed the first FIR, as a counter-complaint, based on the allegations different from the allegations made in the first FIR. The bench comprising Justice RK Agrawal and Justice AM Sapre set aside judgment of Kerala High Court that quashed such a subsequent FIR and final report. The high court had observed that such an FIR/final report is a mere abuse of process of the court. The accused had approached the high court contending that two cases are pending against him in two courts alleging the same set of facts and same offence. The bench observed: “The second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Such was not the case here.” The court also said in the facts of the case, the first FIR was against five persons based on one set of allegations, whereas the second FIR was based on allegations different from the allegations made in the first FIR. The court also referred to its decision in Upkar Singh v. Ved Prakash & Ors., 2004(4) R.C.R.(Criminal) 294, wherein it had observed: “Be that as it may, if the law laid down by this Court in TT Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences.”