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The scope of a second FIR as an open question in the Indian criminal system

July 27, 2021
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This article is written by Gursimran Kaur Bakshi, a student at the National University of Study and Research in Law, Ranchi. This article extensively deals with the scope of registration of the second First Information Report (F.I.R) in India. 

Introduction

There are a growing number of cases where a second First Information Report (‘FIR’) is lodged. While the main issue is not whether the second FIR is maintainable or not, there are legitimate concerns on what transpires the need for the second FIR. 

In usual cases, the FIR sets the criminal law in motion. It indicates the commencement of an investigation of a cognizable offence. Cognizable offences are serious offences for which the police have the power to make an arrest without a warrant from the Magistrate. The list of cognizable offences is mentioned in Schedule I of the Criminal Procedure Code, 1973 (‘CrPC’). 

Let’s first understand how the FIR is lodged and how the investigation begins. Only by understanding this, we will be able to understand when the need for the second FIR arises. 

Registration of an FIR under Section 154 CrPC 

Section 154(1) of the CrPC allows a complainant/informant to lodge an FIR on the commission of a cognizable offence. The police officer empowered under this Section will take note of the information given to him as to the commission of the offence. This Section holds immense importance because this is where the whole process of investigation starts. 

The other way to lodge an FIR is when the police officer registers the same by itself on the information received under Section 157(1) of CrPC.

Now that you know the importance of this Section, certain questions may come to your mind such as ‘Whether lodging an FIR is mandatory?’ or ‘Whether the police officer is bound to register an FIR after receiving information under Section 154 CrPC?’ or ‘What to do when the police refuse to register an FIR?

The answer is yes. Lodging an FIR is the first step to access justice for the victim. In a landmark case of Lalita Kumar v. Government of U.P(2013), the Supreme court observed:

Hence, it can be inferred that an FIR is a vital document both from the point of view of the victim and the accused. However, it is not considered a substantive piece of evidence. It can only be used to prove or disprove the statement under Section 157 or Section 145 of the Indian Evidence Act, 1872, respectively.

Also, an FIR cannot be used as evidence in the trial for corroborating or contradicting the testimonies of the accused or the witnesses as stated in Nasar Ali v. State of Uttar Pradesh (1957).  

How to lodge an FIR 

What to do when the police refuse to lodge an FIR

What to do when the SP also refuses to register an FIR

It is important to understand that the nature of the investigation ordered by the Magistrate under Section 156(3) is limited in nature as specified in Section 202(1). The investigation is to decide whether there are sufficient grounds for proceedings or not and thus, in furtherance of this power, he has no power to examine the complainant on oath. This position of law has been stated in Suresh Chand Jain v. State of M.P and Another (2001). 

In the above case, a complaint was forwarded by the Magistrate to the police to register an FIR and initiate an investigation under Section 156(3). The court was faced with the issue to determine whether the Magistrate can order the registration of an FIR once the complaint is forwarded. It referred to  Suresh Kumar vs. State of Haryana (1996) to point out that the court had taken an erroneous view of Section 156(3). The court thus observed that the view of the Punjab and Haryana high court is contrary and that the Magistrate can order the registration of FIR under Section 156(3). Moreover, even if the Magistrate does not per se ask the police officer to register an FIR once the complaint has been forwarded, the police officer is duty-bound to do so.

The Magistrate under this Section has implied powers to ensure that the investigation of a cognizable offence is done properly. This position of law was observed in Mohd. Yousuf v. Smt. Afaq Jahan (2006). But this power should not be interpreted to include the power to interfere in the investigation of a cognizable offence by the Magistrate as maintained in Union of India v. Prakash P. Hinduja (2003). 

How does the investigation take place after the registration of an FIR

Possibility of registering the second FIR 

The second FIR is a consecutive FIR filed after the information on the commission of a cognizable offence has also been given to the police officer under Section 154 CrPC. It means that the second FIR would relate to the initial FIR in regards to the same offence that has been committed or the same accused persons who have committed it. There could be various possibilities here and that is why the law has to be very specific in permitting the registration of the second FIR. 

The possibility of filing a second FIR came up in Ram Lal Narang v. State of Delhi (1979). In this case, the first FIR was revealed to be a part of the larger conspiracy that was only disclosed in the second FIR. The issue was whether the two conspiracies were identical. The court held that even though some of the conspirators were the same in both the two events, the objectives were different. It cannot be said that both FIRs refer to the commission of the same offence. 

This case paved the way for the interpretation and permissibility of filing the second FIR under CrPC. However, the law on registering the second FIR is still developing. There are instances where the courts have entertained this issue but the views are still evolving. 

Maintainability of the second FIR vis-a-vis judicial pronouncements

When the second FIR cannot be filed  

The impermissibility of registering the second FIR is to protect the fundamental right of an accused against double jeopardy, to maintain the rule of fair investigation and to not allow the police to abuse their investigative powers under CrPC. These three-fold safeguards prevent registration of the second FIR as held in Anju Chaudhary v. the State of UP (2012)

Test of sameness

The legality of the second FIR was extensively discussed in T.T. Antony v. State of Kerala (2001). The court established the test of sameness which means that unless in both the two cases, where the first and second FIR is registered respectively, the FIRs appear to be substantially different from each other such as in facts and circumstances, the second FIR cannot be filed. This means that the facts and circumstances giving rise to the two FIRs must be different, or the offence committed in the two must be different, or the person accused of committing the offence is different. Only then, the second FIR is permissible. 

The court further observed, that the scheme of provisions starting from Section 154 of CrPC to Section 173 CrPC, that is from the starting to the ending of an investigation, relates to the earliest or the first information given in the commission of a cognizable offence. This is what satisfies the requirement of Section 154 CrPC. 

Thus, there is no scope to start an afresh investigation on receipt of every subsequent information received in respect of the same cognizable offence. 

The court can apply the test of sameness when:

Hence, at the end of the further investigation, if both the gravamen of charges in the two FIR is in substance and truth the same, the second FIR cannot be filed. 

It will be liable to be quashed under Article 32 and Article 226 of the Indian Constitution. The test of sameness is meant to balance the rights of an accused Article 19, Article 20(2) and Article 21 of the Indian Constitution. 

Test of sameness in same offence versus the same kind of offence 

While the test of sameness was consistently adopted by various courts since the 2001 judgment, a contention on its applicability came up in the State of Jharkhand v. Lalu Prasad (2017) from a different perspective. 

The court in this case was faced with an issue of whether the test of sameness can be applied in the commission of the ‘same kind of offence.’ 

The court firstly acknowledged the difference between the commission of the same offence and the same kind of offence. Both are two different situations. 

In cases where the second FIR is filed in the commission of the same offence, the second FIR is liable to be quashed through the test of sameness. This situation will lead to a case of double jeopardy under Article 20(2) of the Constitution which prohibits the prosecution of a person twice for the same offence.

Whereas, the test of sameness is not applicable where similar kinds of offences are committed. It’s because the offence in itself can be different in this scenario. However, they may be of a similar nature. 

For instance, murder and culpable homicide are similar in nature but are two different offences under the Indian Penal Code, 1860. Another example is housebreaking and trespass. Both are similar in nature but are two different offences. The police in such cases are supposed to register an FIR every single time. 

Test of consequence 

Where the offence registered under the second F.I.R occurs as a consequence of the offence alleged to have occurred in the first FIR the ‘test of consequence’ is to be applied. In the case of C. Muniappan v. The State of T.N (2010), the court held that the offences alleged to have occurred in both the FIR are the same and thus, the second FIR will not be permissible. This test of consequence has been reiterated by the court in Amitbhai Anilchandra Shah v. CBI (2013).

The test of consequence is also to be applied in cases where the offence disclosed in the first FIR is not the same as the offence disclosed in the second FIR. In this case, a second FIR is permissible. This may also include a situation where the second FIR is lodged by different persons and in different police stations. In Chirag M. Pathak v. Dollyben Kantilal Patel (2018), this issue came up where six FIRs were lodged based on identical facts but in different police stations by six different cooperative societies. The Supreme Court accepted all the FIRs based on the reasoning that they are lodged by different persons and the totality of factual allegations constitutes the commission of different offences. Hence, the FIRs were not overlapping. 

FIRs with the same cause of action prevented by double jeopardy   

In Arnab Ranjan Goswami v. UOI (2020), the issue before the court was whether multiple FIRs can be filed in different states based on the same cause of action. The Supreme court held that lodging multiple FIRs is not permissible to stifle the right of the journalistic freedoms under Article 19(1)(a) of the Indian Constitution. The court was conscious of the fact that there is a need to ensure that the criminal process does not assume the character of a vexatious exercise by registering multiple FIRs and thus fair treatment should be ensured through the parameters of Article 14. There must thus be a balance in the exercise of journalistic freedoms and the power to investigate under CrPC. 

When the second FIR is permissible  

The observation of T.T. Antony was challenged in Upkar Singh vs. Ved Prakash & Ors (2004) on the grounds that the court, in that case, did not consider the right of the aggrieved to file counterclaims. If the second FIR on the same offence and against the same person is barred, then it would jeopardize the right of the victim in case a false FIR is lodged by the accused first and then another FIR is lodged by the victim narrating his side of the story. This means that cross FIRs are permissible. 

Another situation that has been considered by the court is where an accused comes with a different version or counterclaims, the same has to be investigated differently as maintained in Babubhai v. State of Gujarat (2010). Further, a similar position was observed in Surender Kaushik & Ors. vs. State of U.P. & Ors (2013), where the court concluded that the concept of sameness precluded the counter-FIR filed by the victim relating to the same offence. 

The meaning of the concept of sameness is restricted and what is precluded is any further complaint by the complainant for the registration of the case for an investigation that has already begun. This essentially means that the counter-version of the FIR takes two different shapes. The Supreme Court has reiterated the position of these two above-mentioned cases in P Sreekumar v. State of Kerala (2018).

In cases where a separate transaction occurs after the first FIR has been lodged, it cannot be considered as a part of the same transaction within the meaning of further investigation under Section 173(8) as held in Awadesh Kumar Jha v. State of Bihar (2016).

However, what amounts to the same transaction is devoid of the exact meaning. The court in Mohan Baitha v. State of Bihar (2001) observed that the meaning of the term same transaction cannot be given an artificial or technical meaning. That is why common sense is to be applied to find out whether the facts of the case form a part of the same transaction. 

Further, in Nirmal Singh Kahlon v. State of Punjab (2008), it was considered that a second FIR is maintainable in the case where a new discovery is made factually. However, these situations do not include a case where the investigation has been initiated on an illegal basis. In cases where the initiation of an investigation is based on a false case, the criminal proceedings under Section 482 of the CrPC will govern the situation. In this case, another fresh FIR can be filed to initiate an investigation.

Conclusion 

The scope of the second FIR is limited under the Cr.PC as by allowing the same would only burden the different branches within the criminal justice system which is already overburdened. It can also compromise the investigation of the case as it takes a lot of time and effort on the part of the police to initiate and complete an investigation that involves many facts and circumstances of the accused and the witnesses. 

Further, there may be the misuse of these powers that would unnecessarily result in wasting the money of the taxpayers as their money is used by the state in the investigation of an offence. The law on the second FIR is still at the nascent stage and is currently explored in a limited manner through the judicial pronouncement. Unless the legislature decides to enact a law on the same, the judicial interpretation of the same must be done cautiously and harmoniously considering the rights of both parties. 

References 


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