Supreme Court of India
ANJU CHAUDHARYversusSTATE OF U.P. & ANR.
- Citation
- 2012 INSC 606
- Decided
- 13 December 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
A second FIR is permissible only when it relates to a distinct incident or different offence; otherwise it must be quashed, and no pre‑registration hearing is required for a suspect.
Summary
The case concerned whether a second FIR could be registered in relation to communal violence in Gorakhpur and whether the accused was entitled to a hearing before such registration. The appellant, Anju Chaudhary, challenged a High Court order directing the magistrate to register a new FIR under Section 156(3) CrPC, arguing that two FIRs for the same occurrence were impermissible and that natural‑justice requirements were breached. The Supreme Court examined the statutory scheme of Sections 154, 156 and 220 of the CrPC and held that a second FIR is allowed only when it concerns a separate incident or distinct offences, not a duplicate of the first. It further ruled that the Code provides no right of pre‑registration hearing to a suspect, as such a requirement would frustrate prompt investigation. Applying these principles to the facts, the Court found the two FIRs in question dealt with different events and offences, and therefore the direction to register the second FIR was lawful. Consequently, the appeal was dismissed.
Issues considered
- Can more than one FIR be registered for the same offence or incident under the CrPC?
- Is an accused entitled to a hearing before the registration of an FIR?
- How is the expression 'same transaction' under Section 220 interpreted for the purpose of multiple FIRs?
- What is the scope of a magistrate's power under Section 156(3) CrPC to direct investigation?
- Did the High Court violate principles of natural justice by directing registration of a second FIR without notice?
Legislation cited
- Code of Criminal Procedure, 1973s. 151, s. 154, s. 156, s. 156(3), s. 159, s. 162, s. 167(2), s. 173(2), s. 173(8), s. 190, s. 200, s. 202, s. 220, s. 319
- Criminal Law Amendment Act
- Indian Penal Code, 1860s. 147, s. 302, s. 427, s. 436, s. 506
- Prevention of Corruption Acts. 13(1)(e), s. 13(2)
- U.P. Gangsters and Activists Prevention Act
Subjects
FIRSection 154 CrPCmultiple FIRspre‑registration hearingnatural justiceSection 156(3) CrPCsame transactioninvestigationcriminal procedure
Judgment
[2012] 13 S.C.R. 901
ANJU CHAUDHARY A
v.
STATE OF U.P. & ANR.
(Criminal Appeal No. 2039 of 2012)
DECEMBER 13, 2012
B
[SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]
Code of Criminal Procedure, 1973:
s. 154 - FIR - Whether it is permissible to register two c
different FIRs in law - Held: There cannot be two FIRs
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 FIR recorded first, then
0
a second FIR could be registered - It has to be examined on
the merits of each case whether a subsequently registered FIR
is a second FIR about the same incident or offence or is
based upon distinct and different facts and whether its scope
of inquiry is entirely different or not - This will always be a E
mixed question of law and facts depending upon the merits
of a given case - 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 F
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 G
different incidents/crimes, the second FIR is permissible.
s.154 - FIR - Whether an accused entitled to hearing pre-
registration of an FIR - Held: The scheme of CrPC does not
901 H
902 SUPREME COURT REPORTS [2012] 13 S.C.R.
A provide for any right of hearing at the time of registration of
the FIR - The very purpose of fair and just investigation shall
stand frustrated if pre-registration hearing is required to be
granted to a suspect - There would be the pre-dominant
possibility of a suspect escaping the process of law - The
s entire scheme of CrPC supports the theory of exclusion of
audi alteram partem pre-registration of an FIR.
ss. 154 and 220 - Common trial or a common FIR for one
series of acts so connected together as to form the same
transaction - Expression "same transaction" - Meaning of -
C Held: It is not possible to enunciate any formula of universal
application for purpose of determining whether two or more
acts constitute the same transaction - Such things to be
gathered from the circumstances of a given case indicating
proximity of time, unity or proximity of place, continuity of
D action, commonality of purpose or design.
s. 156(3) - Power of the Magistrate under - Discussed.
In the present appeal, the appellant challenged the
legality and correctness of the order of the High Court
E inter alia on the grounds: (i) that in law, there cannot be
two FIRs registered in relation to the same occurrence or
different events or incidents two or more but forming part
of the same transaction and thus on facts, the direction
to register a second FIR, was contrary to law and the very
F spirit of Section 154 of the Code; (ii) that the order of the
High Court was in violation of the principles of natural
justice inasmuch as the High Court neither gave any
notice nor heard the appellant before passing the
impugned order and (iii) that the High Court while virtually
G directing the Magistrate to get an FIR registered,
foreclosed the exercise of judicial discretion by the
Magistrate and as such, the order of the High Court was
not sustainable.
H Per contra, on behalf of the State as well as
ANJU CHAUDHARY v. STATE OF U.P. 903
respondent no.2 it was inter alia contended that there A
were no two separate FIRs in relation to the same offence
or occurrence, but these FIRs related to two different
incidents which was permissible in law and that the
appellant was not entitled to any hearing in law at the
stage of filing the FIR. B
Dismissing the appeal, the Court
HELD:
Whether it is permissible to register two different FIRs in c
law
1.1. On the plain construction of the language and
scheme of Sections 154, 156 and 190 of the Code of
Criminal Procedure, it cannot be construed or suggested
that there can be more than one FIR about an occurrence. D
However, the opening words of Section 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 E
a cognizable offence. The purpose of registering an FIR
is to set the machinery of criminal investigation into
motion, which culminates with filing of the police report
in terms of Section 173(2) of the Code. It will, thus, be
appropriate to follow the settled principle that there cannot F
be two FIRs 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 FIR recorded first, then a second FIR could be G
registered. [Para 15] [925-C-F]
1.2. The filing of report upon completion of
investigation, either for cancellation or alleging
commission of an offence, is a matter which once filed
H
904 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 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
8 offence or otherwise, re-examination by the investigating
agency on its own should not be permitted merely by
registering another FIR 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
C cannot be ruled out. It is with this intention in mind that
such interpretation should be given to Section 154 of the
Code, as it would not only further the object of law but
even that of just and fair investigation. [Para 15] [925-H;
926-A-C]
D 1.3. It has to be examined on the merits of each case
whether a subsequently registered FIR is a second FIR
about the same incident or offence or is based upon
distinct and different facts and whether its scope of
inquiry is entirely different or not. It will not be
E appropriate for the Court to lay down one straightjacket
formula uniformly applicable to all cases. This will always
be a mixed question of law and facts depending upon the
merits of a given case. [Para 16] [926-F-G]
F 1.4. 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. The Court in order to examine the impact of
one or more FIRs has to rationalise the facts and
G 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
H
ANJU CHAUDHARY v. STATE OF U.P. 905
occurrences. If the answer falls in the first category, the A
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.
[Para 23) [936-E-H] B
1.5. In the case at hand, even the offences which are
stated to have been committed, and for which the two
FIRs were registered were different and distinct. There
were two different FIRs relatable to different occurrences, C
investigation of one was no way dependent upon the
other and they are neither inter-linked nor inter-
dependent. They were lodged by different persons in
relation to occurrences which are alleged to have
occurred at different points of time against different
people and for different offences. Requirement of proof D
in both cases was completely distinct and different.
Thus, there was no similarity and the test of similarity
would not be satisfied in the present case. Thus,
lodging of the subsequent FIR was not a second FIR for
the same occurrence, and thus, could be treated as a E
First Information Report for all purposes including
investigation in terms of the provisions of the Code. It
was not in the form of a statement under Section 162 of
the Code. [Para 28] [938-F-G; 939-A-C]
F
Rita Nag v. State of West Bengal (2009) 9 SCC 129:
2009 (13) SCR 276; Vinay Tyagi v. lrshad Ali @ Deepak &
Ors. SLP (Crl) No.9185-9186 of 2009; Ram Lal Narang v.
State (Delhi Administration) (1979) 2 SCC 322; M. Krishna
v. State of Kamataka (1999) 3 SCC 247: 1999 (1) SCR 780; G
T. T. Antony v. State of Kera/a (2001) 6 SCC 181: 2001 ( 3 )
SCR 942; Upkar Singh v. Ved Prakash (2004) 13 SCC 292;
Rameshchandra Nandla/ Parikh v. State of Gujarat (2006) 1
SCC 732; Vikram v. State of Maharashtra (2007) 12 SCC
332: 2007 (6) SCR 185; Tapinder Singh v. State of Punjab H
906 SUPREME COURT REPORTS [2012) 13 S.C.R.
A (1970) 2 SCC 113: 1971 ( 1 ) SCR 599; Shiv Shankar Singh
v. State of Bihar (2012) 1 SCC 130: 2011 (13) SCR 247;
Babu Babubhai v. State of Gujarat and Ors. (2010) 12 SCC
254: 2010 (10 ) SCR 651 and Chirra Shivraj v. State of
Andhra Pradesh (2010) 14 SCC 444: 2010 (15) SCR 673 -
B referred to.
Is an accused entitled to hearing pre-registration of an
FIR?
2.1. The scheme of the Criminal Procedure Code
C does not provide for any right of hearing at the time of
registration of the First Information Report. The
registration forthwith of a cognizable offence is the
statutory duty of a police officer in charge of the police
station. The very purpose of fair and just investigation
D shall stand frustrated if pre-registration hearing is
required to be granted to a suspect. It is not that the
liberty of an individual is being taken away or is being
adversely affected, except by the due process of law.
Where the Officer In-charge of a police station is informed
E of a heinous or cognizable offence, it will completely
destroy the purpose of proper and fair investigation if the
suspect is required to be granted a hearing at that stage
and is not subjected to custody in accordance with law.
There would be the pre-dominant possibility of a suspect
F escaping the process of law. The entire scheme of the
Code unambiguously supports the theory of exclusion
of audi alteram partem pre-registration of an FIR. [Para
30] [940-D-G]
2.2. It is clear that the law does not contemplate grant
G of any personal hearing to a suspect who attains the
status of an accused only when a case is registered for
committing a particular offence or the report under
Section 173 of the Code is filed terming the suspect an
accused that his rights are affected in terms of the Code.
H Absence of specific provision requiring grant of hearing
ANJU CHAUDHARY v. STATE OF U.P. 907
to a suspect and the fact that the very purpose and A
object of fair investigation is bound to be adversely
affected if hearing is insisted upon at that stage, clearly
supports the view that hearing is not any right of any
suspect at that stage. [Para 32) [942-B-D]
B
2.3. Even in the cases where report under Section
173(2) of the Code is filed in the Court and investigation
records the name of a person in column (2), or even does
not name the person as an accused at all, the Court in
exercise of its powers vested under Section 319 can C
summon the person as an accused and even at that stage
of summoning, no hearing is contemplated under the law.
[Para 33) [942-E]
2.4. The situation, however, will be different where the
complaint or an application is directed against a D
particular person for specific offence and the Court under
Section 156 dismisses such an application. In that case,
the higher court may have to grant hearing to the suspect
before it directs registration of a case against the suspect
for a specific offence. [Para 34) [942-F-G] E
State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR
1964 SC 221: 1964 SCR 71; Union of India v. WN. Chadha
(1993) Suppl. (4) SCC 260: 1992 (3) Suppl. SCR 594 and
Samaj Parivartan Samuday v. State of Kamataka (2012) 7 F
sec 407 - referred to.
Power of the Magistrate under Section 156(3) CrPC
3.1. While dealing with the application or passing an
order under Section 156(3), the Magistrate does not take G
cognizance of an offence. When the Magistrate had
applied his mind only for order an investigation under
Section 156(3) of the Code or issued a warrant for the
said purpose, he is not said to have taken cognizance.
It is an order in the nature of a pre-emptory reminder or H
908 SUPREME COURT REPORTS [2012) 13 S.C.R.
A intimation to the police to exercise its primary duty and
power of investigation in terms of Section 151 of the
Code. Such an investigation embraces the continuity of
the process which begins with collection of evidence
under Section 156 and ends with the final report either
B under Section 159 or submission of chargesheet under
Section 173 of the Code. [Para 35] [944-D-F]
3.2. The Magistrate exercises a very limited power
under Section 156(3) and so is its discretion. It does not
travel into the arena of merit of the case if such case was
C fit to proceed further. This distinction has to be kept in
mind by the court in different kinds of cases. In the
present case, the Magistrate had not dealt with the case
on merits, but on a legal assumption that it was not a
case to direct investigation because investigation was
D already going on under an earlier FIR. There was thus
no error of jurisdiction in the order of the High Court
requiring the Magistrate to deal with the cases afresh and
pass an order under Section 156(3) of the Code. [Para 38]
[946-G-H; 947-A-B]
E
Mona Pawar v. High Court of Allahabad (2011) 3 SCC
496: 2011 (2) SCR 413; Dilawar Singh v. State of Delhi
(2007) 9 SCR 695; Tula Ram & Ors. v. Kishore Singh (1977)
4 SCC 459: 1978 (1) SCR 615; Rameshbhai Pandurao
F Hedau v. State of Gujarat (2010) 4 SCC 185: 2010 (3) SCR
522 and Srinivas Gundluri & Ors. v. SEPCO Electric Power
Construction Corporation & Ors. (2010) 8 SCC 206: 2010 (9)
SCR 278 - referred to.
4.1. It is true that law recognizes common trial or a
G common FIR being registered for one series of acts so
connected together as to form the same transaction as
contemplated under Section 220 of the Code. There
cannot be any straight jacket formula, but this question
has to be answered on the facts of each case. The
H expression 'same transaction' from its very nature is
ANJU CHAUDHARY v. STATE OF U.P. 909
incapable of exact definition. It is not intended to be A
interpreted in any artificial or technical sense. Common
sense in the ordinary use of language must decide
whether or not in the very facts of a case, it can be held
to be one transaction. [Para 40] [947-D-F]
B
4.2. It is not possible to enunciate any formula of
universal application for the purpose of determining
whether two or more acts constitute the same
transaction. Such things are to be gathered from the
circumstances of a giv1rn case indicating proximity of
time, unity or proximity of place, continuity of action, C
commonality of purpose or design. Where two incidents
are of different times with involvement of different
persons, there is no commonality and the purpose
thereof different and they emerge from different
circumstances, it will not be possible for the Court to take D
a view that they form part of the same transaction and
therefore, there could be a common FIR or subsequent
FIR could not be permitted to be registered or there could
be common trial. [Para 41] [947-G-H; 948-A]
E
4.3. Similarly, for several offences to be part of the
same transaction, the test which has to be applied is
whether they are so related to one another in point of
purpose or of cause and effect, or as principal and
subsidiary, so as to result in one continuous action. F
Thus, where there is a commonality of purpose or
design, where there is a continuity of action, then all
those persons involved can be accused of the same or
different offences "committed in the course of the same
transaction". [Para 42] [948-8-C] G
Mohan Baitha v. State of Bihar (2001) 4 SCC 350 -
referred to.
H
910 SUPREME COURT REPORTS [2012) 13 S.C.R.
Case Law Reference:
2009 (13) SCR 276 referred to Para 15
(1979) 2 sec 322 referred to Para 16, 18
B 1999 (1) SCR 780 referred to Para 17, 18
2001 (3) SCR 942 referred to Para 18, 19
(2004) 13 sec 292 referred to Para 19
c2006) 1 sec 132 referred to Para 20
c
2007 (6) SCR 185 referred to Para 21
1971 (1) SCR 599 referred to Para 21
2011 (13) SCR 247 referred to Para 21
D
2010 (10 ) SCR 651 referred to Para 22
2010 (15) SCR 673 referred to Para 23
1964 SCR 71 referred to Para 29
E
1992 (3) Suppl. SCR 594 referred to Para 30
(2012) 1 sec 407 referred to Para 31
2011 (2) SCR 413 referred to Para 35
F
(2007) 9 SCR 695 referred to Para 35
1978 (1) SCR 615 referred to Para 36
2010 (3) SCR 522 referred to Para 37
""
.;J
2010 (9) SCR 278 referred to Para 37
(2001 > 4 sec 350 referred to Para 40
CRIMINAL APPELLATE JURISDCTION : Criminal Appeal
No. 2039 of 2012.
H
ANJU CHAUDHARY v. STATE OF U.P. 911
From the Judgment and Order dated 26.09.2008 of the A
High Court of Judicature at Allahabad in CRLR No. 2346 of
2008.
Ravindra Shrivastava, lrshad Ahmad, AAG, Siddharth
Dave, Kaushik Poddar, Abhinav Shrivastava, Anshuman
8
Shrivastava, Suvigya Awasthy, M.R. Shamshad, Aparna Bhat,
Pukhrambam Ramesh Kumar for the appearing parties.
The Judgment 'Of the Court was delivered by
SWATANTER KUMAR, J. 1. Leave granted. c
2. A cardinal question of public importance and one that
is likely to arise more often than not in relation to the lodging
, of the First Information Report (FIR) with the aid of Section
156(3) of the Code of Criminal Procedure (for short, 'the Code')
or otherwise independently within the ambit of Section 154 of D
the Code is as to whether there can be more than one FIR in
relation to the same incident or different incidents arising from
the same occurrence.
3. The above question arises from the factual matrix which, E
shorn of the unnecessary details, can be stated as follows:
4. On 16th November, 2007, one Parvez Parwaz,
Respondent No.2, claiming himself to be a social activist filed
an application under Section 156(3) in the Court of the Chief F
Judicial Magistrate, Gorakhpur. According to this complaint,
one Mahant Aditya Nath Yogi, Member of Parliament and leader
of an unregistered organization called the Hindu Yuva Vahini
had been spreading hatred amongst Hindus and Muslims for
a number of years and has also been causing fear amongst
the Muslim community and harming them, demolishing the G
properties of Muslims and carrying out other acts of
harassment. On 27th January, 2007 when the complainant,
Respondent No.2 herein, was returning home from the Railway
Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath,
H
912 SUPREME COURT REPORTS (2012] 13 S.C.R.
A Member of Parliament, Dr. Radha Mohan Dass Aggarwal,
Member of the Legislative Assembly, Dr. Y. D. Singh, Member
of the Legislative Council and Anju Chowdhary, Mayor of
Gorakhpur, the Minister of State and BJP Leader Shiv Pratap
Shukla, other office bearers and thousands of activists of Hindu
B Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as
various other persons whom the petitioner does not know by
name but can recognise, were holding a meeting as "Warning
Meeting". The meeting which was addressed by Yogi Aditya
Nath who was saying that if blood of one Hindu be shed then
c they will not register any FIR with the administration against
the bloodshed of one Hindu in the times to come, instead they
will get ten persons (Muslims) killed. If damage is done to the
shops and properties of Hindus, they would indulge in similar
activities towards the Muslims. Anything can be done to save
D the glory of Hindus and all should prepare for a fight. Amongst
others, it was also stated in the complaint as under:
"He stated that we will not allow lifting of Tazia anywhere
in the Gorakhpur City and the Gorakhpur District and we
will also celebrate our Holi with these Tazias. He stated that
E we will have to take harsh steps for the welfare of Hindus
and we do not want that the generations to come
remember us with bad names. He stated that I do not
understand that we will be ready to take up those names,
therefore, be ready to fight your final battle. Member of
F Parliament Yogi Aditya Nath stated that once you stand up
then you see that Gorakhpur will remain peaceful for many
years. If the administration does not take revenge of the
murder of the Trader's son, then we will take ourselves, we
will ourselves take revenge of that murder. Member of
G Parliament Yogi Aditya Nath, in his speech, termed the
administration as worthless and eunuch and the incidents
as Government sponsored terrorism and challenging the
democratic Government he stated that they will destroy the
law and order and will take law in their own hands. He also
H called for bandh of Gorakhpur and Basti Divisions and
ANJU CHAUDHARY v. STATE OF U.P. 913
[SWATANTER KUMAR, J.]
directed the activists to inform about this to every place A
through every media. Thereafter, Member of Parliament
Yogi Aditya Nath led a torch procession and hundreds of
activists along with abovenamed persons participated and
raised slogans in support of Yogi Aditya Nath. In this
procession, the slogan related to spreading of hatred B
against Muslims and sentiments of killing and harming
them was being raised with primary importance, which was
pronounced as "Katuye Kaate Jayenge, Ram - Ram
Chillanyenge". The petitioner got afraid very much by the
above incident and keeping in view the danger to his life, c
went to the house of a relative. The petitioner saw at many
places in the way that these elements raising exciting
slogans behaved improperly by passing humiliating
comments on Burqa - clad women and beared Muslim
passers by and beat them and fired several rounds in the
0
air. All these incidents including the public meeting and
torch procession was witnessed by a number of people
apart from me, who I know by name and address, but I do
not deem it proper to reveal their names in the present
situation due to reason of insecurity.
E
5. That after the night of 26th January, 2007, due to highly
sensitive condition prevailing in the town Gorakhpur, curfew
was imposed on three Police Station areas of the
Gorakhpur town and Section 144 was in force in entire
Gorakhpur city area including the places of public meeting F
and the torch procession. Despite this, the aforesaid
unconstitutional meeting and torch procession was
organized and conducted openly violating the Section 144
in presence Police Officers and the public was provoked
and directed to perform criminal acts by the activists G
present there and the activists of other places were
provoked through them. Aditya Nath Yogi provoked Hindus
to kill Muslims and rob and set afire their houses and
shops and to destruct their religious places and Tazias for
the reason of the murder of Raj Kumar Agrahari (incident H
914 SUPREME COURT REPORTS [2012] 13 S.C.R.
A of 26/27th January, 2007 Gorakhpur Town) and the alleged
incidents happending since 24th January, 2007 and also
provoked Muslims to not to celebrate Muharram which was
a conspiracy hatched by him on the basis of his maligned
thought and to fulfil which, he was looking for an
8 appropriate situation. Under this very conspiracy, criminal
incidents were carried out in the Gorakhpur and Basti
Divisions, which caused disruption of Law and Order.
6. That as a result of the speech given by Yogi Aditya Nath
in the public meeting on 27th January, 2007, torch
c procession and conspiracy hatched by abovenamed
persons present with him, the shops, houses, godowns
and vehicles of Muslims were robbed and set afire in
Gorakhpur Police Station Areas in Gorakhpur Town by the
Yogi supported Hiridu Yuva Vahini, activists of BJP, Vyapar
D Mandal, which created an atmosphere of fear and terror.
Gorakhnath temple became main centre of communal
miscreant activities of the followers of this Yogi Aditya Nath
and their refuge and these miscreants attacked the houses
of Muslims residing in the area adjoining the temple
E premises, their shops and godowns and the vehicles of
Muslims standing there (Trucks, Rickshaw, Scooters,
Cars, etc.) and set them afire which caused which loss.
Under the criminal conspiracy and instigation of Member
of Parliament Yogi and the abovenamed persons, the
F followers of Yogi Aditya Nath killed Rashid RIO Sahabgunj
S/O Rasheed R/O Rahmat Nagar, P.S. Rajghat in the
Rajghat Police Station area and such followers also tried
to kill by setting afire by pouring petrol on Peshimam Tufail
Ahmad S/O Munnavar Hussain R/O Singharia in Cantt.
G Police Station area and such followers also caused huge
loss by destructing Mosque situated at Menhadia village
under Police Station Gagaha and such followers also set
afire the religious epic Kuran in the Mosque of Village
Etkhauli and caused loss by destructing the Mosque under
H the Police Station Gagaha and such followers also set afire
ANJU CHAUDHARY v. STATE OF U.P. 915
[SWATANTER KUMAR, J.]
the madarsa situated in village Vasudiha under Police A
Station Gagaha and also set afire Tazias and such
followers also set afire the shops of Abdulla S/O of
Sharfuddin, Shahur, Riyaz all Muslims at Bhaluan
Chouraha under Police Station Gagaha and the shops of
Muslims named Fakharuddin and Islam were also set afire B
apart from lrshad Tent House at Jaitpur Couraha under
Sahajnawan Police Station and such followers also
destructed and destroyed the Eidgaah situated in village
Rudlapur P.S. Khorabar and Eidgaah situated in village
Dumri (Niwas) P.S. Sahajanawan, and Eidgaah situated c
in village Mustafabad@ Mallaur P.S. Sahjanawan and the
Mosque situated in village Bhhopgarh P.S. Gola District
Gorakhpur. Tazias were not allowed to be lifted at many
places in Gorakhpur district and at many places where the
Tazia procession were carried out, they were destructed D
and set afire there by doing miscreant acts there. The
shops of Salim S/O Shaukat in village Jaddupatti, Ashiq
Band, Anwar barber, Hafizullah and Jabbar in village
Menhdeva under Police Station Sikrigunj were also set
afire under the same conspiracy. These miscreants also E
robbed and set afire the shop of Tajammul Hussain in
village Dhabra of Police Station Sikrigunj. In the same
way, the shops of Nadir, Ashiq Mukhtar were robbed and
set afire in Belghat and such miscreants also attacked the
mosque situated in village Bhainsa P.S. Bansgaon and
destroyed it's gate and also destructed shops of two F
Muslims in the market.
7. That the followers of Aditya Nath Yogi and activists -
miscreants of the abovenamed organization robbed and
set afire the buses of the roadways by blocking the roads G
and the government and private other vehicles were also
robbed and set afir4e. The conduction of roadways buses
in Gorakhpur and Basti Division remained effected during
the period from 29.01.2007 to 5th February, 2007 and
other adjoining Division also remained effected. During H
916 SUPREME COURT REPORTS [2012) 13 S.C.R.
A the period from 9th January to 31st January, 2007, the
followers and activists of Yogi Aditya Nath destroyed more
than 22 buses of the roadways on different places under
this conspiracy and also caused loss by setting them afire,
in which 14 roadways buses belonged to Gorakhpur areas
B and 8 buses belonged to outer areas. On date 31st
January, 2007 road buses in the Nichnaul depot in
Maharajgunj district were also destructed and set afire by
the followers of Yogi Aditya Nath.
8. That Railways was disrupted by the followers of Yogi
c Aditya Nath Hindu Yuva Vahini, BJP and Vyapar Mandal
and about more than 14 trains were set afire causing loss
and the Yogi supported miscreants of these organizations
pelted stones and destructed the office of the SDM
situated in Bansgaon and office of the DM at Gorakhpur
D under the criminal conspiracy and flamboyant speech
against the government and instigation for criminal acts by
the persons abovenamed and in the same way the
miscreants of these organizations robbed and set afire the
shops of Muslims in other Kasbas Khajani, Kauriram,
E Bansgaon, etc. of the Gorakhpur district. In Kasba
Khajani, these miscreants entered the mosque and and
Madarsa Arabia Ahal-e-Sunnat and robbed and destroyed
the same and also robbed and set afire the shops of 15
Muslims, whose details have been mentioned in the
F petition dated 5th July, 2007 written by Mohammad Asad
Hayat to the Senior Superintendent of Police, Gorakhpur
and the vehicles of Muslims plying on the road were also
made targets. In Kasba Gola, the shops of Akhtar Hussain
S/O Muhhamad Umar, Guiab Hussain S/O Ismail, Abrar
G S/O Sarfaraz, Aftab S/O Noor Alam, Feroz and Tahir were
also robbed and set afire. In Kasba Kauriram, the shops
of Nabi Muhammad, Nizamuddin, Majnu and Yusuf were
also set afire. In Kasba Bansgaon, the shops of Tazammul
Hussain and Dr. Siraz Ansari were also robbed and burnt.
H The Muslims aggrieved by these incidents were not heard
ANJU CHAUDHARY v. STATE OF U.P. 917
[SWATANTER KUMAR, J.]
by the Police. Apart from this, the shops, houses and A
Tazias of Muslims were robbed and burnt in many rural
areas of Gorakhpur district. All these incidents have been
published in Newspapers from 29th January, 2007 to 15th
February, 2007. All these criminal acts were done by the
follower activists of Yogi Aditya Nath connected to Hindu s
Yuva Vahini, BJP and Vyapar Manda! on instigation by
aforesaid enraging speech by Yogi Aditya Nath and under
the conspiracy hatched by Yogi Aditya Nath and other
abovenamed persons.
9. That Yogi Aditya Nath delivered a enraging speech C
addressing "Hindu Chetna Rally" in Kasba Kasaya District
Padrauna on 28th January, 2007 and asked the Hindus
that they shed fear of death from their hearts. It is
necessary to mention here that in Purvanchal, Hindu Yuva
Vahini under the leadership of Yogi Aditya Nath was D
hatching a conspiracy to disrupt communal harmony, to
annoy Muslims and to harm them since earlier times and
was looking for an appropriate situation for the same and
it's activists were active for the same. This appropriate
situation met them in the background of murder of E
Rajkumar Agrahari in Gorakhpur town in the night of 26/
27th January, 2007. The activists of Hindu Yuva Vahini and
BJP were jointly holding public meetings at the different
places since first week of January 2007 itself in Kotwali
Padrauna area of Kushinagar district and were raising F
slogans that if you have to live in Purvanchal, then you
must have to chant name of Yogi and whoever chants the
name of Ali, he will be beaten in every street. The office
bearers and activists of Hindu Yuva Vahini were delivering
communal speeches and were canvassing that Muslims G
must be taught a lesson and they have to be harmed to
such an extent that they do not dare raise their heads and
any of their religious ceremony has not to be allowed to
be completed. In this respect, all such information are
recorded in the G.D. of Kotwali Padrauna town on different H
918 SUPREME COURT REPORTS [2012] 13 S.C.R.
A dates in the month of January, 2007.
10. That all the preparations to carry out such wrongful acts
and spread the same in Gorakhpur Division and Basti
Division had been completed by Hindu Yuva Vahini, BJP
and Vyapar Mandal under the leadership of Yogi Aditya
B
Nath and the speech delivered by Yogi Aditya Nath in the
aforesaid "Warning" meeting and the torch procession
conducted on Gorakhpur Railway Station in the night of
dated 27th January, Gorakhpur Railway Station in the night
of date 27th January, 2007 and the "Hindu Chetna Rally"
c conducted in Kasaya of district Kushinagar on 28th
January, 2007 further provoked and directed their activists
and thereafter Yogi Aditya Nath got himself arrested at the
border of Gorakhpur district on 28th January, 2007 while
returning from Kasaya under conspiracy and it was
D canvassed by the activists of Hindu Yuva Vahini, BJP and
Vyapar Mandal under conspiracy only that the
administration has arrested the prophet of Hindu Welfare,
hence got the brawl spread in relation to this arrest the
background background of the public provocation on
E account of aforesaid speech. And robbed, burnt and
destroyed and properties of Muslims, their religious
places, epics, emblems, Tazias and government vehicles
and buildings, offices buses of roadways and railways and
in this sequence, condemnable crimes killings of Muslims
F and attempt to kill Muslims were carried out."
5. Another very vital fact, that requires to be noticed at this
stage itself, is that on 26th January, 2007, Rajkumar Agrahari,
a Hindu boy was murdered in Gorakhpur, which resulted in
G breaking out of communal violence in the city and imposition
of curfew under Section 144 of the Code. On 27th January,
2007 a condolence meeting for the murder of Raj Kumar was
organised which was attended by many persons including Anju
Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath,
H Member of Parliament from that constituency. It appears from
ANJU CHAUDHARY v. STATE OF U.P. 919
[SWATANTER KUMAR, J.]
the record that the High Court had also passed some orders A
in regard to the investigation of the case and finally the police
had registered a case under Section 302 of the Indian Penal
Code, 1860 (for short 'IPC'), and had even filed a charge sheet
under Section 173 of the Code before the Court of competent
jurisdiction against six unknown accused persons. B
6. Apart from this incident and before the public meeting
attended by above-stated Anju Chaudhary, another incident
took place at the shop of one Hazrat S/o Bismilla under Police
Station Gantt. In this incident, the shop of Hazarat was set on C
fire at about 6 p.m. on 27th January, 2007 causing heavy
damage to the same. In fact, as per the report lodged by him,
he was working in that shop and owner of the shop was one
Md. Isa Ansari. According to him, some unknown persons,
claiming to be from Hindu Yuva Vahini, had set the shop on fire.
He neither knew their names nor their addresses. This report D
was sent by post and was, thus, received by the Police Station
and registered as FIR No.145 of 2007 on 3rd February, 2007.
The police had registered a case against unknown persons
under Sections 147, 427, 436 and 506 IPC read with Section
23 of the U.P. Gangsters and Activists Prevention Act and E
Section 7 of the Criminal Law Amendment Act.
7. The complaint application under Section 156 IPC was
filed by Parvaz on 16th November, 2007, nearly 10 months after
the date of occurrence. This application, which was heard by F
the learned Chief Judicial Magistrate, was rejected vide order
dated 29th July, 2008. The learned Magistrate expressed the
opinion that since Crime Case No.145 of 2007 had already
been registered, as noticed above, there was no propriety to
register an FIR again. The intention of the legislature was to G
provide speedy criminal law and justice to all. Thus, there was
no need to conduct fresh investigation by another person merely
by lodging a fresh FIR. The Court held that to pass such an
order was not justifiable and rejected the application. The thrust
of the order of the learned Magistrate was primarily on this H
aspect of the case.
920 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 8. Aggrieved from the order dated 29th July, 2008, Parvaz
filed a revision petition before the High Court. The High Court
vide its judgment dated 26th September, 2008 set aside the
order of the learned Magistrate under revision and directed the
Magistrate to pass a fresh order on the application of
B respondent No.2. While passing this order, the Court held as
under:
"11. In addition to the aforesaid averments, various other
allegations have also been made in the application under
Section 156(3) Cr.P.C. From all these allegations, prima
c facie cognizable offences of very serious nature requiring
police investigation are disclosed. Hence, the learned
CJM Gorakhpur ought to have passed the order in present
case for registration of FIR against the persons named in
the application under Section 156(3) Cr.P.C. and its
D investigation by the police, but it is very unfortunate that due
to lack of adequate legal knowledge, without going into the
allegations made in that application, the learned CJM has
rejected the application merely on the ground that in view
of the FIR registered at case Crime No.145 of 2007 at
E P.S. Cantt., there is no justification to get the second FIR
registered. This view of the learned CJM is wholly
erroneous. Annexure (iv) is the copy of the FIR, which was
registered at Case Crime No.145 of 2007 at P.S. Gantt
Gorakhpur on the basis of the application of Hazarat S/o
F Vismilla. On perusal of this FIR, it is revealed that the said
FIR relates to the incident, which had occurred on
27.01.2007 at about 6.00 p.m., in which damage was
caused to the shop of the complainant Hazarat by some
named persons of Hindu Yuwa Wahini. That FIR was
G lodged regarding one incident only, whereas in the
application under Section 156(3) Cr.P.C. a number of
incidents have been mentioned, which occurred on
different places affecting different persons. Therefore, it
cannot be said that the FIR registered at Case Crime
H No.145 of 2007 covers all the incidents mentioned in the
ANJU CHAUDHARY v. STATE OF U.P. 921
[SWATANTER KUMAR, J.]
application under Section 156(3) Cr.P.C. As such, there A
was no legal bar in this case to get the First Information
Report registered on the basis of the application moved
by the applicant revisionist under Section 156(3) Cr.P.C.
and its investigation by the police, because all the
allegations made in the said application and in the FIR B
registered at Case Crime No.145 of 2007 are not the
same.
12. Although, in view of law laid down by a Division Bench
of this Court in the case of Sukhwasi Vs. State of U.P.
2007 (59) ACC 739 in which Full Bench decision of the C
case of Ram Babu Guta & Ors. Vs. State of U.P. 2001
(43) ACC 50 has been relied upon, application under
Section 156(3) Cr.P.C. can be treated as complaint, but
on the basis of the allegations made in the application
under Section 156(3) Cr.P.C. in the present case prima D
facie cognizable offences of very serious nature requiring
police investigation are disclosed. Hence, treating the
application under Section 156(3) Cr.P.C. as complaint in
present case would not be legal and justified. While
passing order for treating the application under Section E
156(3) Cr.P.C. as complaint, the following observations
made by the Full Bench of this Court in the case of Ram
Babu Gupta {supra) must be kept in mind by the
Magistrate/Judges:-
F
"However, it is always to be kept in mind that it is
the primary duty of the police to investigate in case
involving cognizable offences and aggrieved person
cannot be forced to proceed in the manner
provided by Chapter XV and to produce his G
witnesses at his cost of bring home the charge to
the accused. It is the duty of the state to provide
safeguards to the life and property of a citizen. If
any intrusion is made. by an offender, it is for the
State to set the law into motion and come to the aid H
922 SUPREME COURT REPORTS [2012] 13 S.C.R.
A of the person aggrieved."
13. Therefore,, having regard to the afore cited
observations made by the Full Bench, the Magistrates/
Judges should not shirk their legal responsibility to pass
an order for registration of the FIR and its investigation by
B
the police on the applications under Section 156(3) Cr.P.C.
in the cases where on the basis of the averments made
therein and the material, if any, brought on record in
support thereof, prima facie cognizable offence of serious
nature requiring police investigation is made out and in
c such cases the aggrieved person should not be compelled
to collect and produce the evidence at his cost to bring
home the charges to the accused by passing an order to
treat the application under Section 156(3) Cr.P~C. as
complaint thereby forcing the aggrieved person to proceed
D in the manner provided by Chapter XV Cr.P.C.
xxx xxx xxx
19. Consequently, the revision is allowed. The impugned
order is hereby set aside the Chief Judicial Magistrate
E
Gorakhpur is directed to pass fresh order on the application
dated 16.11.2007 moved by the applicant-revisionist Parvaz
Parwaz, under Section 156(3) Cr.P.C. and it must be ensured
that after registration of the FIR on the basis of that application,
proper investigation is carried out."
F
9. In the present appeal by way of special leave, the
appellant Smt. Anju Chaudhary challenges the legality and
correctness of the order of the High Court primarily on the
following grounds :
G
(a) The order passed by learned CJM dated 29th July,
2008 did not suffer from any error of jurisdiction
and, thus, the High Court could not have upset the
said order in exercise of its revisional jurisdiction.
H
ANJU CHAUDHARY v. STATE OF U.P. 923
[SWATANTER KUMAR, J.]
(b) While making certain observations, the High Court, A
in the impugned order held that prima facie
cognizable offences were made out and while
virtually directing the learned Magistrate to get an
FIR registered, has foreclosed the exercise of
judicial discretion by the learned Magistrate. As B
such, the order of the High Court is not sustainable.
(c) In law, there cannot be two FIRs registered in
relation to the same occurrence or different events
or incidents two or more but forming part of the
same transaction. The direction to register a C
second FIR, therefore, is contrary to law and the
very spirit of Section 154 of the Code.
(d) The order of the High Court is in violation of the
principles of natural justice inasmuch as the High D
Court neither gave any notice nor heard the
appellant before passing the impugned order dated
26th September, 2008.
10. Contra to the above submissions made by the E
appellant, the counsel appearing for the State as well as
respondent No.2 have supported the order of the High Court
in law as well as with reference to the facts of the case in hand.
It is contended on their behalf that there were no two separate
FIRs in relation to the same offence or occurrence, but these
FIRS related to two different incidents which is permissible in F
law. The appellant was not entitled to any hearing in law at the
stage of filing the FIR, and in any case no direction has been
made to register a case particularly against the appellant for
any given offence. Thus, the order of the High Court does not
call for any interference. G
11. Having noticed the contentions of the parties and in
order to complete the factual matrix of the case, we may also
notice at this stage that in furtherance to the order of the High
Court dated 26th September, 2008, the learned CJM, vide H
924 SUPREME COURT REPORTS [2012) 13 S.C.R.
A order dated 17th October, 2008 accepted the application of
. respondent No.2 and directed the Police Station Cantt.,
Gorakhpur to register the case under appropriate sections and
to ensure the investigation in terms of the order passed by the
High Court. A copy of the order was placed before this Court
B during the course of hearing.
12. Since all these contentions are inter-related and inter-
dependant, it will be appropriate for the Court to examine them
collectively. Of course, the foremost contention raised before
C us is as to whether it is permissible to register two different Fl Rs
in law. We may deal with the legal aspect of this issue first
and then turn to the facts.
13. Section 154 of the Code requires that every
information relating to the commission of a cognizable offence,
D whether given orally or otherwise to the officer in-charge of a
police station, has to be reduced into writing by or under the
direction of such officer and shall be signed by the person
giving such information. The substance thereof shall be entered
in a book to be kept by such officer in such form as may be
E prescribed by the State Government in this behalf.
14. A copy of the information so recorded under Section
154(1) has to be given to the informant free of cost. In the event
of refusal to record such information, the complainant can take
F recourse to the remedy available to him under Section 154(3).
Thus, there is an obligation on the part of a police officer to
register the information received by him of commission of a
cognizable offence. The two-fold obligation upon such officer
is that (a) he should receive such information and (b) record
the same as prescribed. The language of the section imposes
G such imperative obligation upon the officer. An investigating
officer, an officer-in-charge of a police station can be directed
to conduct an investigatiol'! in the area under his jurisdiction by
the order of a Magistrate under Section 156(3) of the Code who
is competent to take cognizance under Section 190. Upon
H
ANJU CHAUDHARY v. STATE OF U.P. 925
[SWATANTER KUMAR, J.]
such order, the investigating officer shall conduct investigation A
in accordance with the provisions of Section 156 of the Code.
The specified Magistrate, in terms of Section 190 of the Code,
is entitled to take cognizance upon receiving a complaint of
facts which constitute such offence; upon a police report of such
facts; upon information received from any person other than a 8
police officer, or upon his own knowledge, that such offence has
been committed.
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 FIR C
about an occurrence. However, the opening words of Section
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 D
. constitutes a cognizable offence. The purpose of registering
an FIR is to set the machinery of criminal investigation into
motion, which culminates with filing of the police report in terms
of Section 173(2) of the Code. It will, thus, be appropriate to
follow the settled principle that there cannot be two FIRs E
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 FIR recorded first, then a
second FIR could be registered. The most important aspect F
is to examine the inbuilt safeguards provided by the legislature
in the very language of Section 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. G
Therefore, second FIR 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 H
926 SUPREME COURT REPORTS (2012) 13 S.C.R.
A.. 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
B guilty of committing an offence or otherwise, reexamination by
the investigating agency on its own should not be permitted
merely by registering another' FIR 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
C be ruled out. It is with this intention in mind that such
interpretation should be given to Section 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
D 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 Section 167(2) of the Code. [Ref. Rita Nag v. State
of West Bengal [(2009) 9 SCC 129] and Vinay Tyagi v. lrshad
E Ali@ Deepak & Ors. (SLP (Crl) No.9185-9186 of 2009 of the
same date).
16. It has to be examined on the merits of each case
whether a subsequently registered FIR is a second FIR about
F the same incident or offence or is based upon distinct and
different facts and whether its scope of inquiry is entirely
different or not. It will not be appropriate for the Court to lay
down one straightjacket formula uniformly applicable to all
cases. This will always be a mixed question of law and facts
G depending upon the merits of a given case. In the case of Ram
Lal Narang v. State (Delhi Administration) [(1979) 2 SCC 322),
the Court was concerned with the registration of a second FIR
in relation to the same facts but constituting different offences
and where ambit and scope of the investigation was entirely
H different. Firstly, an FIR was registered and even the charge-
ANJU CHAUDHARY v. STATE OF U.P. 927
[SWATANTER KUMAR, J.]
sheet filed was primarily concerned with the offence of A
conspiracy to cheat and misappropriation by the two accused.
At that stage, the investigating agency was not aware of any
conspiracy to send the pillars (case property) out of the country.
It was also not known that some other accused persons were
parties to the conspiracy to obtain possession of the pillars from B
the court, which subsequently surfaced in London. Earlier, it
was only known to the Police that the pillars were stolen as the
property within the meaning of Section 410 IPC and were in
possession of the accused person (Narang brothers) in
London. The Court declined to grant relief of discharge to the C
petitioner in that case where the contention raised was that
entire investigation in the FIR subsequently instituted was illegal
as the case on same facts was already pending before the
courts at Ambala and courts in Delhi were acting without
jurisdiction. The fresh facts came to light and the scope of
0
investigation broadened by the facts which came to be
disclosed subsequently during the investigation of the first FIR.
The comparison of the two FIRs has shown that the
conspiracies were different. They were not identical and the
subject matter was different. The Court observed that there was
a statutory duty upon the Police to register every information E
relating to cognizable offence and the second FIR was not hit
by the principle that it is impermissible to register a second FIR
of the same offence. The Court held as under :
"20.Anyone acquainted with the day-to-day working of the F
criminal courts will be alive to the practical necessity of the
police possessing the power to make further investigation
and submit a supplemental report. It is in the interests of
both the prosecution and the defence that the police should
have such power. It is easy to visualize a case where fresh G
material may come to light which would implicate persons
not previously accused or absolve persons already
accused. When it comes to the notice of the investigating
agency that a person already accused of an offence has
a good alibi, is it not the duty of that agency to investigate H
928 SUPREME COURT REPORTS [2012] 13 S.C.R. ··
A the genuineness of the plea of alibi and submit a report to
the Magistrate? After all, the investigating agency has
greater resources at its command than a private
individual. Similarly, where the involvement of persons who
are not already accused comes to the notice of the
B investigating agency, the investigating agency cannot keep
quiet and refuse to investigate the fresh information. It is
their duty to investigate and submit a report to the
Magistrate upon the involvement of the other persons. In
either case, it is for the Magistrate to decide upon his
c future course of action depending upon the stage at which
the case is before him. If he has already taken cognizance
of the offence, but has not proceeded with the enquiry or
trial, he may direct the issue of process to persons freshly
discovered to be involved and deal with all the accused in
a single enquiry or trial. If the case of which he has
D previously taken cognizance has already proceeded to
some extent, he may take fresh cognizance of the offence
disclosed against the newly involved accused and proceed
with the case as a separate case. What action a Magistrate
is to take in accordance with the provisions of the CrPC
E in such situations is a matter best left to the discretion of
the Magistrate. The criticism that a further investigation by -
the police would trench upon the proceeding before the
court is really not of very great substance, since whatever
the police may do, the final discretion in regard to further
F action is with the Magistrate. That the final word is with the
Magistrate is sufficient safeguard against any excessive
use or abuse of the power of the police to make further
investigation. We should not, however, be understood to
say that the police should ignore the pendency of a
G proceeding before a court and investigate every fresh fact
that comes to light as if no cognizance had been taken by
the Court of any offence. We think that in the interests of
the Independence of the magistracy and the judiciary, In
the interests of the purity of the administration of criminal
H justice and In the interests of the comity of the various
ANJU CHAUDHARY v. STATE OF U.P. 929
[SWATANTER KUMAR, J.]
agencies and institutions entrusted with different stages of A
such administration, it would ordinarily be desirable that
the police should inform the court and seek formal
permission to make further investigation when fresh facts
come to light.
B
21. As observed by us earlier, there was no provision in
the CrPC, 1898 which, expressly or by necessary
implication, barred the right of the police to further
investigate after cognizance of the case had been taken
by the Magistrate. Neither Section 173 nor Section 190 C
lead us to hold that the power of the police to further
investigate was exhausted by the Magistrate taking
cognizance of the offence. Practice, convenience and
preponderance of authority, permitted repeated
investigations on discovery of fresh facts. In our view,
notwithstanding that a Magistrate had taken cognizance of D
the offence upon a police report submitted under Section
173 of the 1898 Code, the right of the police to further
investigate was not exhausted and the police could
exercise such right as often as necessary when fresh
information came to light. Where the police desired to E
make a further investigation, the police could express their
regard and respect for the court by seeking its formal
permission to make further investigation.
22. As in the present case, occasions may arise when a F
second investigation started independently of the first may
disclose a wide range of offences including those covered
by the first investigation. Where the report of the second
investigation is submitted to a Magistrate other than the
Magistrate who has already taken cognizance of the first G
case, it is up to the prosecuting agency or the accused
concerned to take necessary action by moving the
appropriate superior court to have the two cases tried
together. The Magistrates themselves may take action suo
motu. In the present case, there is no problem since the H
930 SUPREME COURT REPORTS [2012] 13 S.C.R.
A earlier case has since been withdrawn by the prosecuting
agency. It was submitted to us that the submission of a
charge-sheet to the Delhi court and the withdrawal of the
case in the Ambala court amounted to an abuse of the
process of the court. We do not think that the prosecution
8 acted with any oblique motive. In the charge-sheet filed in
the Delhi court, it was expressly mentioned that Mehra was
already facing trial in the Ambala Court and he was,
therefore, not being sent for trial. In the application made
to the Ambala Court under Section 494 CrPC, it was
c expressly mentioned that a case had been filed in the Delhi
Court against Mehra and others and, therefore, it was not
necessary to prosecute Mehra in the Ambala court. The
Court granted its permission for the withdrawal of the case.
Though the investigating agency would have done better
D if it had informed the Ambala Magistrate and sought his
formal permission for the second investigation, we are
satisfied that the investigating agency did not act out of any
malice. We are also satisfied that there has been no
illegality. Both the appeals are, therefore, dismissed."
E 17. In the case of M. Krishna v. State ofKamataka [(1999)
3 SCC 247], this Court took the view that even where the article
of charge was similar but for a different period, there was
nothing in the Code to debar registration of the second FIR.
The Court opined that the FIR was registered for an offence
F under Sections 13(1 )(e) and 13(2) of the Prevention of
Corruption Act related to the period 1.8.1978 to 1.4.1989 and
the investigation culminated into filing of a report which was
accepted by the Court. The second FIR and subsequent
proceedings related to a later period which was 1st August,
G 1978 to 25th July, 1978 under similar charges. It was held that
there was no provision which debar the filing of a subsequent
FIR.
18. In the case of T. T. Antony v. State of Kera/a [(2001)
H 6 SCC 181], the Court explained that an information given
ANJU CHAUDHARY v. STATE OF U.P. 931
[SWATANTER KUMAR, J.]
under sub-Section (1) of Section 154 of the Code is commonly A
known as the First Information Report (FIR). Though this term
is not used in the Code, it is a very important document. The
Court concluded that second FIR for the same offence or
occurrence giving rise to one or more cognizable offences was
not permissible. In this case, the Court discussed the B
judgments in Ram Lal Narang (supra) and M. Krishna (supra)
in some detail, and while quashing the subsequent FIR held as
under:
"23. The right of the police to investigate into a cognizable C
offence is a statutory right over which the court does not
possess any supervisory jurisdiction under CrPC. In
Emperor v. Khwaja Nazir Ahmad the Privy Council spelt
out the power of the investigation of the police, as follows:
"In India, as has been shown, there is a statutory D
right on the part of the police to investigate the
circumstances of an alleged cognizable crime
without requiring any authority from the judicial
authorities, and it would, as Their Lordships think,
be an unfortunate result if it should be held possible E
to interfere with those statutory rights by an exercise
of the inherent jurisdiction of the court."
24. This plenary power of the police to investigate a
cognizable offence is, however, not unlimited. It is subject F
to certain well-recognised limitations. One of them, is
pointed out by the Privy Council, thus:
"[l]f no cognizable offence is disclosed, and still
more if no offence of any kind is disclosed, the
police would have no authority to undertake an G
investigation .... "
25. Where the police transgresses its statutory power of
investigation the High Court under Section 482 CrPC or
Articles 226/227 of the Constitution and this Court in an H
932 SUPREME COURT REPORTS [2012] 13 S.C.R.
A appropriate case can interdict the investigation to prevent
abuse of the process of the court or otherwise to secure
the ends of justice.
xxx xxx xxx
B 35. For the aforementioned reasons, the registration of the
second FIR under Section 154 CrPC on the basis of the
letter of the Director General of Police as Crime No. 268
of 1997 of Kuthuparamba Police Station is not valid and
consequently the investigation made pursuant thereto is of
c no legal consequence, they are accordingly quashed. We
hasten to add that this does not preclude the investigating
agency from seeking leave of the Court in Crimes Nos. 353
and 354 of 1994 for making further investigations and filing
a further report or reports under Section 173(8) CrPC
D before the competent Magistrate in the said cases. In this
view of the matter, we are not inclined to interfere with the
judgment of the High Court under challenge insofar as it
relates to quashing of Crime No. 268 of 1997 of
Kuthuparamba Police Station against the ASP (R.A.
E Chandrasekhar); in all other aspects the impugned
judgment of the High Court shall stand set aside."
19. The judgment of this Court in TT Antony (supra) came
to be further explained and clarified by a three Judge Bench of
F this Court in the case of Upkar Singh v. Ved Prakash [(2004)
13 SCC 292], wherein the Court stated as under :
"17. It is clear from the words emphasised hereinabove
in the above quotation, this Court in the case of T. T.
Antony v. State of Kera/a has not excluded the registration
G 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 that any further complaint by the same
complainant or others against the same accused,
subsequent to the registration of a case, is prohibited
H under the Code because an investigation in this regard
ANJU CHAUDHARY v. STATE OF U.P. 933
[SWATANTER KUMAR, J.]
would have already started and further complaint against A
the same accused will amount to 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 first complaint or B
on his behalf alleging a different version of the said
incident.
18. This Court in Kari Choudhary v. Sita Devi discussing
this aspect of law held:
c
"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 D
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 E
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
reg~rding the new discovery made by the police F
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 G
alleged have been committed and, if so, who have
committed it."
(emphasis supplied)
H
934 SUPREME COURT REPORT$ [2012) 13 S.C.R.
A xxx xxx xxx
23. Be that as it may, if the law laid down by this Court in
T. T. 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
B our opinion, such conclusion would lead to serious
consequences. This will be clear from the hypothetical
example given hereinbelow 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
c 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 book. This cannot be the
D purport of the Code.
24. We have already noticed that in T.T. Antony case this
Court did not consider the legal right of an agg.rieved
person to file counterclaim, on the contrary from the
E observations found in the said judgment it clearly indicates
that filing a counter-complaint is permissible.
25. In the instant case, it is seen in regard to the incident
which took place on 20-5-1995, the appellant and the first
respondent herein have lodged separate complaints giving
F different versions but while the complaint of the respondent
was registered by the police concerned, the complaint of
the appellant was not so registered, hence on his prayer
the learned Magistrate was justified in directing the police
concerned to register a case and investigate the same and
G report back. In our opinion, both the learned Additional
Sessions Judge and the High Court erred in coming to the
conclusion that the same is hit by Section 161 or 162 of
the Code which, in our considered opinion, has absolutely
no bearing on the question involved. Section 161 or 162
H
ANJU CHAUDHARY v. STATE OF U.P. 935
[SWATANTER KUMAR, J.]
of the Code does not refer to registration of a case, it only A
speaks of a statement to be recorded by the police in the
course of the investigation and its evidentiary value."
20. Somewhat similar view was taken by a Bench of this
Court in the case of Rameshchandra Nandlal Parikh v. State
of Gujarat [(2006) 1 SCC 732], wherein the Court held that the B
subsequent FIRs cannot be prohibited on the ground that some
other FIR has been filed against the petitioner in respect of
other allegations filed against the petitioner.
21. This Court also had the occasion to deal with the C
situation where the first FIR was a cryptic one and later on, upon
receipt of a proper information, another FIR came to be
recorded which was a detailed one. In this case, the court took
the view that no exception could be taken to the same being
treated as an FIR. In the case of Vikram v. State of D
Maharashtra (2007) 12 SCC 332, the Court held that it was
not impermissible in law to treat the subsequent information
report as the First Information Report and act thereupon. In the
case of Tapinder Singh v. State of Punjab [(1970) 2 SCC 113]
also, this Court examined the question as to whether cryptic, E
anonymous and oral messages, which do not clearly specify
the cognizable offence, can be treated as FIR, and answered
the question in the negative.
22. In matters of complaints, the Court in the case of Shiv
Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed F
the view that the law does not prohibit filing or entertaining of a
second complaint even on the same facts, provided that the
earlier complaint has been decided on the basis of insufficient
material or has been passed without understanding the nature
of the complaint or where the complete facts could not be G
placed before the court and the applicant came to know of
certain facts after the disposal of the first complaint. The Court
applied the test of full consideration of the complaints on merits.
In paragraph 18, the Court held as under: -
H
936 SUPREME COURT REPORTS [2012] 13 S.C.R.
A "18. Thus, it is evident 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
8 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, the second complaint
would not be maintainable wherein the earlier complaint
c has been disposed of on full consideration of the case of
the complainant on merit."
23. 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
D 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
E 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
F 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 Fl Rs
relate to the same incident and to the same occurrence, are in
regard to incidents which are two or more parts of the same
G 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
H permissible, This is the view expressed by this Court in the
ANJU CHAUDHARY v. STATE OF U.P. 937
[SWATANTER KUMAR, J.]
case of Babu Babubhai v. State of Gujarat and Ors. [(2010) A
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.
B
24. 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 C
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 D
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 E
whenever any further information is received by the
investigating agency, it is always in furtherance of the First
Information Report.
25. Now, we should examine the facts of the present case F
in light of the principles stated supra. The complaint/
application under Section 156(3) filed by respondent No. 2 was
founded on the condolence meeting which was attended by a
large number of persons including the persons named in the
complaint. According to respondent No. 2, named persons had G
given speeches which were communal, provoking and were
creating disharmony between the communities, and
encouraging people to commit criminal offences rather than to
follow the due process of law. The complaint of respondent No.
2 did not relate to any event prior to the holding of the meeting H
938 SUPREME COURT REPORTS (2012] 13 S.C.R.
A and participation of the stated persons. This complaint was of
a general nature and related to various communal riots that
occurred subsequent to and as a result of the meeting. Thus,
it related to a different case, grievance and alleged commission
of offences at the time and subsequent to the holding of the
B meeting.
26. The First Information Report 145/2007 lodged by
Hazrat son of Bismillah related to burning of a shop prior to
holding of a meeting. He categorically stated that he did not
know the persons or names of the perpetrators who attacked
C the shop where he was working. This incident occurred at 6 p.m.
as per the records while the meeting itself, as per respondent
No. 2 was held after 8 p.m., though on the same date. His report
clearly states that when he was going back to his house at
about 8.30 p.m., he stopped at the place where the meeting
D was being held. The FIR registered by Hazrat was against
unknown persons and related to a particular event and
commission of a particular crime. There was no question of any
provocation, conspiracy or attempt by the persons
premeditatedly committing the offences which they committed.
E
27. As per the FIR, it was an offence committed at random
by some unknown persons. The registration of such FIR was
neither intended to be nor was it in fact in relation to a matter
of larger investigation, or commission of offences, as alleged
F by the respondent no.2.
28. Even the offences which are stated to have been
committed, and for which the two Fl Rs were registered in these
respective cases were different and distinct. In the complaint
filed by Parvez Parwaz, which was registered as a FIR, names
G of the persons were mentioned and a general investigation was
called for, while FIR 145/2007 registered by Hazrat, was
against unknown persons for damage of his property, which
was for a specific offence, without any other complaint or
allegation of any communal instigation or riot. In other words,
H
ANJU CHAUDHARY v. STATE OF U.P. 939
[SWATANTER KUMAR, J.]
these were two different FIRs relatable to different occurrences, A
investigation of one was no way dependent upon the other and
they are neither inter-linked nor inter-dependent. They were
lodged by different persons in relation to occurrences which are
alleged to have occurred at different points of time against
different people and for different offences. Requirement of B
proof in both cases was completely distinct and different. Thus,
there was no similarity and the test of similarity would not be
satisfied in the present case. Thus, we have no hesitation in
coming to the conclusion that lodging of the subsequent FIR
was not a second FIR for the same occurrence as stated in FIR c
145/2007, and thus, could be treated as a First Information
Report for all purposes including investigation in terms of the
provisions of the Code. It was not in the form of a statement
under Section 162 of the Code.
Is an accused entitled to hearing pre-registration of an D
FIR?
29. Section 154 of the Code places an unequivocal duty
upon the police officer in charge of a police station to register
FIR upon receipt of the information that a cognizable offence E
has been committed. It hardly gives any discretion to the said
police officer. The genesis of this provision in our country in
this regard is that he must register the FIR and proceed with
the investigation forthwith. While the position of law cannot be
dispelled in view of the three Judge Bench Judgment of this F
Court in State of Uttar Pradesh v. Bhagwant Kishore Joshi [AIR
1964 SC 221], a limited discretion is vested in the investigating
officer to conduct a preliminary inquiry pre-registration of a FIR
as there is absence of any specific prohibition in the Code,
express or implied. The subsequent judgments of this Court G
have clearly stated the proposition that such discretion hardly
exists. In fact the view taken is that he is duty bound to register
an FIR. Then the question that arises is whether a suspect is
entitled to any pre-registration hearing or any such right is
vested in the suspect.
H
940 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 30. The rule of audi alteram partem is subject to
exceptions. Such exceptions may be provided by law or by
such necessary implications where no other interpretation is
possible. Thus rule of natural justice has an application, both
under the civil and criminal jurisprudence. The laws like
B detention and others, specifically provide for post-detention
hearing and it is a settled principle of law that application of
this doctrine can be excluded by exercise of legislative powers
which shall withstand judicial scrutiny. The purpose of the
Criminal Procedure Code and the Indian Penal Code is to
c effectively execute administration of the criminal justice system.
and protect society from perpetrators of crime. It has a twin
purpose; firstly to adequately punish the offender in accordance
with law and secondly to ensure prevention of crime. On
examination, the scheme of the Criminal Procedure Code~does
D not provide for any right of hearing at the time of registration of
the First Information Report. As already noticed, the registration
forthwith of a cognizable offence is the statutory duty of a police
officer in charge of the police station. The very purpose of fair
and just investigation shall stand frustrated if pre-registration
hearing is required to be granted to a suspect. It is not that
E the liberty of an individual is being taken away or is being
adversely affected, except by the due process of law. Where
the Officer In-charge of a police station is informed of a heinous
or cognizable offence, it will completely destroy the purpose of
proper and fair investigation if the suspect is required to be
F granted a hearing at that stage and is not subjected to custody
in accordance with law. There would be the pre-dominant
possibility of a suspect escaping the process of law. The entire
scheme of the Code unambiguously supports the theory of
exclusion of audi alteram partem pre-registration of an FIR.
G Upon registration of an FIR, a person is entitled to take
recourse to the various provisions of bail and anticipatory bail
to claim his liberty in accordance with law. It cannot be said to
be a violation of the principles of natural justice for two different
reasons. Firstly, the Code does not provide for any such right
H at that stage. Secondly, the absence of such a provision
ANJU CHAUDHARY v. STATE OF U.P. 941
[SWATANTER KUMAR, J.]
clearly demonstrates the legislative intent to the contrary and A
thus necessarily implies exclusion of hearing at that stage. This
Court in the case of Union of India v. WN. Chadha (1993)
Suppl. (4) SCC 260 clearly spelled out this principle in
paragraph 98 of the judgment that reads as under:
B
"98. If prior notice and an opportunity of hearing are to be
given to an accused in every criminal case before taking
any action against him, such a procedure would frustrate
the proceedings, obstruct the taking of prompt action as
law demands, defeat the ends of justice and make the
provisions of law relating to the investigation lifeless, C
absurd and self-defeating. Further, the scheme of the
relevant statutory provisions relating to the procedure of
investigation does not attract such a course in the absence
of any statutory obligation to the contrary."
D
31. In the case of Samaj Parivartan Samuday v. State
of Kamataka (2012) 7 SCC 407, a three-Judge Bench of this
Court while dealing with the right of hearing to a person termed
observed that there was no right of hearing. Though the
suspects were already interveners in the writ petition, they were E
heard. Stating the law in regard to the right of hearing, the
Court held as under :
"50. There is no provision in CrPC where an investigating
agency must provide a hearing to the affected party before
registering an FIR or even before carrying on investigation F
prior to registration of case against the suspect. CBI, as
already noticed, may even conduct pre-registration inquiry
for which notice is not contemplated under the provisions
of the Code, the Police Manual or even as per the
precedents laid down by this Court. It is only in those cases G
where the Court directs initiation of investigation by a
specialised agency or transfer investigation to such
agency from another agency that the Court may, in its
discretion, grant hearing to the suspect or affected parties.
However, that also is not an absolute rule of law and is H
942 SUPREME COURT REPORTS [2012] 13 S.C.R.
A primarily a matter in the judicial discretion of the Court. This
question is of no relevance to the present case as we have
already heard the interveners."
32. While examining the above-stated principles in
conjunction with the scheme of the Code, particularly Section
8
154 and 156(3) of the Code, it is clear that the law doe&-·not
contemplate grant of any personal hearing to a suspect who
attains the status of an accused only wh.en a ·case is registered
for committing a particular offence or the report under Section
.... 173 of the Code is filed terming the suspect an accused that
.., his rights are affected ~n terms of the Code. Absence of specific
provision requiring 'grant of hearing to a suspect and the fact
that the very purpose and object of fair investigation is bound
to be adversely affected if hearing is insisted upon at that
stage, clearly supports the view that hearing is not any right of
) any suspect at that stage.
33. Even in the cases where report under Section 173(2)
of the Code is filed in the Court and investigation records the
name of a person in column (2), or even does not name the
E person as an accused at all, the Court in exercise of its powers
vested under Section 319 can summon the person as an
accused and even at that stage of summoning, no hearing is
contemplated under the law.
34. Of course, situation will be different where the
F complaint or an application is directed against a particular
person for specific offence and the Court under Section 156
dismisses such an application. In that case, the higher court
may have to grant hearing to the suspect before it directs
registration of a case against the suspect for a specific offence.
G We must hasten to clarify that there is no absolute indefeasible
right vested in a suspect and this would have to be examined
in the facts and circumstances of a given case. But one aspect
is clear that at the stage of registration of a FIR or passing a
direction under Section 156(3), the law does not contemplate
H
ANJU CHAUDHARY v. STATE OF U.P. 943
[SWATANTER KUMAR, J.]
grant of any hearing to a suspect. Coming to the facts of the A
present case, the complaint under Section 156 had named
certain persons, but it had also referred to a number of other
persons and the investigation prayed for was of a generic
nature and not agair.st a particular person for commission of
any specified offence. The substance and nature of the 8
allegations made in the complaint were such that it was not
possible to state with certainty as to how the offences were
committed and by whom. Thus, the Court was called upon to
pass an order directing general investigation of very wide
scope. It was to be investigated, as to who besides the named c
persons gave speeches, incited the public at large, what its
impact was on the violence as alleged and who were the
persons who had participated in the alleged communal
violence. Thus, it was not a case where one or more persons
committed the murder of someone and clearly fell under Section
0
302 IPC. The merit of the case was not disclosed by the
learned Magistrate while passing the order dated 29th July,
2008 under Section 156(3) of the Code. The Court did not
analyze at all the ingredients of an offence, participation of
persons and their other effects. The court primarily proceeded
on a legal issue without reference to the facts of the case E
stating that since one FIR had been recorded i.e. FIR No. 145/
2007, it was not permissible to register second FIR and direct
investigation thereof. This view, as already discussed above
was, in fact and in law, not sustainable. The Court had not
recorded any finding in favour of the appellant to the effect that F
she was not present, she had not participated or that she was
in no way connected with communal violence. We must not be
understood to state that the appellant was involved in any
manner in the commission of the said crime. This has to be
investigated as directed by the court in accordance with law G
and that too without prejudice to the rights and contentions of
the appellant. The grievance of non-grant of hearing in any
case loses its significance as we have heard the appellant at
some length and have dealt with the contentions raised before
H
944 SUPREME COURT REPORTS [2012] 13 S.C.R.
A us. In the facts of the present case, thus, no prejudice is
caused to the appellant.
Power of the Magistrate under Section 156(3)
35. Investigation into commission of a crime can be
B commenced by two different modes. First, where the police
officer registers an FIR in relation to commission of a
cognizable offence and commences investigation in terms of
Chapter XII of the Code, the other is when a Magistrate
competent to take cognizance in terms of Section 190 may
C order an investigation into commission of a crime as per the
provisions of that Chapter XIV. Section 156 primarily deals with
the powers of a police office to investigate a cognizable case.
While dealing with the application or passing an order under
Section 156(3), the Magistrate does not take cognizance of an
D offence. When the Magistrate had applied his mind only for
order an investigation under Section 156(3) of the Code or
issued a warrant for the said purpose, he is not said to have
taken cognizance. It is an order in the nature of a preemptory
reminder or intimation to the police to exercise its primary duty
E and power of investigation in terms of Section 151 of the Code.
Such an investigation embraces the continuity of the process
which begins with collection of evidence under Section 156 and
ends with the final report either under Section 159 or
submission of chargesheet under Section 173 of the Code.
Refer Mona Pawar v. High Court of Allahabad [2011 3 SCC
F
496]. In the case of Dilawar Singh v. State of Delhi [2007. 9
SCR 695), this Court as well stated the principle that
investigation begin in furtherance to an order under Section
156(3) is not anyway different from the kind of investigation
commenced in terms of Section 156(1). They both terminate
G with filing of a report under Section 173 of the Code. The Court
signified the point that when a Magistrate orders investigation
under Chapter XII he does so before taking cognizance of an
offence. The court in paragraph 17 of the judgment held as
under:-
H
ANJU CHAUDHARY v. STATE OF U.P. 945
[SWATANTER KUMAR, J.]
"The clear position therefore is that any Judicial A
Magistrate, before taking cognizance of the offence, can
order investigation under Section 156(3) of the Code. If he
does so, he is not to examine the complainant on oath
because he was not taking cognizance of any offence
therein. For the purpose of enabling the police to start B
investigation it is open to the Magistrate to direct the
police to register an FIR. There is nothing illegal in doing
so. After all registration of an FIR involves only the process
of entering the substance of the information relating to the
commission of the cognizable offence in a book kept by c
the officer in charge of the police station as indicated in
Section 154 of the Code. Even if a Magistrate does not
say in so many words while directing investigation under
Section 156(3) of the Code that an FIR should be
registered, it is the duty of the officer in charge of the police
0
station to register the FIR regarding the cognizable offence
disclosed by the complainant because that police officer
could take further steps contemplated in Chapter XII of the
Code only thereafter."
36. Caution in this process had been introduced by this E
Court vide its judgment in the case of Tula Ram & Ors. v.
Kishore Singh [1977) 4 SCC 459) where it was held that the
Magistrate can order the police to investigate the complaint,
but it has no power to compel the police to submit a charge
sheet on a final report being submitted by the police. F
37. Still another situation that can possibly arise is that the
Magistrate is competent to treat even a complaint termed as
an application and pass orders under Section 156(3), but
where it takes cognizance, there it would have to be treated G
as a regular complaint to be tried in accordance with the
provisions of Section 200 onwards falling under Chapter XV
of the Code. There also the Magistrate is vested with the
power to direct investigation to be made by a police officer or
by such other person as he thinks fit for the purposes of
deciding whether or not there is sufficient ground for H
946 SUPREME COURT REPORTS [2012] 13 S.C.R.
A proceeding. This power is restricted and is not as wide as the
power vested under Section 156(3) of the Code. The power
of the Magistrate under Section 156(3) of the Code to order
investigation by the police have not been touched or affected
by Section 202 because these powers are exercised even
B before the cognizance is taken. In other words, Section 202
would apply only to cases where Magistrate has taken
cognizance and chooses to enquire into the complaint either
himself or through any other agency. But there may be
circumstances where the Magistrate, before taking cognizance
c of the case himself, chooses to order a pure and simple
investigation under Section 156(3) of the Code. These cases
would fall in different class. This view was also taken by a
Bench of this Court in the case of Rameshbhai Pandurao
Hedau v. State of Gujarat [(2010) 4 SCC 185). The distinction
0 between these two powers had also been finally stated in the
judgment of this Court in the case of Srinivas Gundluri & Ors.
v. SEPCO Electric Power Construction Corporation & Ors.
[(2010) 8 SCC 206] where the Court stated that to proceed
under Section 156(3) of the Code, what is required is a bare
reading of the complaint and if it discloses a cognizable
E offence, then the Magistrate instead of applying his mind to the
complaint for deciding whether or not there is sufficient ground
for proceeding, may direct the police for investigation. But
where it takes cognizance and decides as to whether or not
there exists a ground for proceeding any further, then it is a
F case squarely falling under Chapter XV of the Code.
38. Thus, the Magistrate exercises a very limited power
under Section 156(3) and so is its discretion. It does not travel
into the arena of merit of the case if such case was fit to
G proceed further. This distinction has to be kept in mind by the
court in different kinds of cases. In the present case, the
learned Magistrate while passing the order dated 29th July,
2008, had not dealt with the case on merits, but on a legal
assumption that it was not a case to direct investigation
H because investigation was already going on under FIR No. 45/
ANJU CHAUDHARY v. STATE OF U.P. 947
[SWATANTER KUMAR, J.]
2007. Once it is held as done by us above, there were two A
different and distinct offences committed by different persons
and there was no commonality of transaction between the two.
We do not find any error of jurisdiction in the order of the High
Court requiring the learned Magistrate to deal with the cases
afresh and pass an order under Section 156(3) of the Code. 8
Once, that view is taken, the direction passed by the learned
Magistrate directing further investigation under Section 156(3)
can also not be complied with though there is no specific
challenge to that order before us.
39. Thus, we are called upon to deal with from the point of C
view as to whether the investigating agency should be
restrained from conducting further investigation or there should
be stay of such investigation.
40. It is true that law recognizes common trial or a common D
FIR being registered for one series of acts so connected
together as to form the same transaction as contemplated under
Section 220 of the Code. There cannot be any straight jacket
formula, but this question has to be answered on the facts of
each case. This Court in the case of Mohan Baitha v. State of E
Bihar [(2001) 4 SCC 350), held that the expression 'same
transaction' from its very nature is incapable of exact definition.
It is not intended to be interpreted in any artificial or technical
sense. Common sense in the ordinary use of language must
decide whether or not in the very facts of a case, it can be held F
to be one transaction.
41. It is not possible to enunciate any formula of universal
application for the purpose of determining whether two or more
acts constitute the same transaction. Such things are to be
gathered from the circumstances of a given case indicating G
proximity of time, unity or proximity of place, continuity of action,
commonality of purpose or design. Where two incidents are
of different times with involvement of different persons, there
is no commonality and the purpose thereof different and they
emerge from different circumstances, it will not be possible for H
948 SUPREME COURT REPORTS [2012) 13 S.C.R.
A the Court to take a view that they form part of the same
transaction and therefore, there could be a common FIR or
subsequent FIR could not be permitted to be registered or there
could be common trial.
42. Similarly, for several offences to be part of the same
B transaction, the test which has to be applied is whether they
are so related to one another in point of purpose or of cause
and effect, or as principal and subsidiary, so as to result in one
continuous action. Thus, where there is a commonality of
purpose or design, where there is a continuity of action, then
C all those persons involved can be accused of the same or
different offences "committed in the course of the same
transaction".
43. For the reasons afore-stated, we find no jurisdictional
c or other error in the judgment of the High Court and that leads
us to direct the dismissal of this appeal.
B.B.B. Appeal dismissed.
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