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Saturday, February 6, 2016

The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR.= It is well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of offence or the same occurrence or incident giving rise to one or more offences for which chargesheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-Section (8) to Section 173 of Cr.P.C. The reliance is placed on the decision of this court rendered in T.T.Antony v. State of Kerala[2], relevant paras of which read thus: “19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC. xx xx xx 21. ...The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.” (emphasis supplied) However, this principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. The first FIR deals with offences punishable under Sections 3,4,5,6 and 7 of the Act, whereas, the second FIR deals with the offences punishable under Sections 419 and 420 of IPC which are alleged to have committed during the course of investigation of the case in the first FIR. This Court is of the view that the alleged offences under the second FIR in substance are distinct from the offences under the first FIR and they cannot, in any case, said to be in the form of the part of same transaction with the alleged offences under the first FIR. Therefore, no question of further investigation could be made by the investigating agency on the alleged offences arisen as the term “further investigation” occurred under sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of the case in continuation of the earlier investigation with respect to which the chargesheet has already been filed. The reliance is placed on the judgment of this Court in the case of Rama Chaudhary v. State of Bihar[3], the relevant para 17 reads thus: “17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.” (emphasis supplied) Therefore, for the above said reasons the submissions made on behalf of both the appellants are not tenable in law and the same cannot be accepted by this Court. Further, the case of Amitbhai Anilchandra Shah (supra) upon which strong reliance is placed by the learned counsel for both the appellants is also totally inapplicable to the fact situation and it does not support the case of both the appellants. For the reasons stated supra, this Court does not find any reason either to interfere with the impugned order passed by the High Court or with the order of dismissal dated 04.12.2013 passed by the Judicial Magistrate first class, Kishanganj, on the application made under Section 239 of Cr.P.C. filed by the appellants. Accordingly, this appeal being devoid of merit is dismissed. The order dated 09.02.2015 granting stay shall be vacated.

NON-REPORTABLE


               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 15 OF 2016
            (Arising out of SLP(CRL) No.975 of 2015)


AWADESH KUMAR JHA @ AKHILESH
KUMAR JHA & ANR.                   …APPELLANTS

                            Versus


THE STATE OF BIHAR                     … RESPONDENT




                       J U D G M E N T



V. GOPALA GOWDA, J.


      Leave granted.


This criminal appeal is directed against the  impugned  judgment  and  order
dated 14.10.2014 passed by the High Court of Judicature  at  Patna  in  Crl.
Misc. No.13700 of  2014  whereby  it  has  refused  to  interfere  with  the
impugned  orders  therein.  Both  the  appellants  filed  application  under
Section 239 of Code of Criminal Procedure, 1973 (for  short  the  “Cr.P.C.”)
before the  learned  Judicial  Magistrate  of  first  class,  Kishanganj  in
relation to FIR No. 183 of 2008. The same was dismissed  on  the  ground  of
being devoid of merit vide order dated 04.12.2013. The  Court  of  Sessions,
Purnea, in revision  petition,  has  upheld  the  decision  of  the  learned
Judicial Magistrate of first class which has  further  upheld  by  the  High
Court. The correctness of the  said  order  is  challenged  in  this  appeal
urging various grounds.

Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:-

On 04.05.2008  FIR  no.  111  of  2008  (for  short  the  “first  FIR”)  was
registered at Kishanganj police station against both  the  appellants  along
with other persons for the offences punishable under Sections 3,4,5,6 and  7
of Immoral Traffic (Prevention) Act, 1956 (in short “the Act”) on a  written
complaint made by Sub Divisional Police Officer  Ravish  Kumar,  Kishanganj,
Bihar. The allegation made therein was that on  the  telephonic  information
received from SDPO Phulwari sharif, Patna regarding  the  confinement  of  a
minor girl Rubana Khatun,  aged  about  16  years,  in  red  light  area  of
Khagaria for the purpose of carrying out the flesh trade, the raiding  party
of police authorities conducted a raid in the house of Sisa Khalifa. In  the
course of such raid, the raiding party found six  couples  in  objectionable
position in six different rooms. Along  with  others  the  appellant  no.  1
(Akhilesh Kumar Jha) and appellant no.2 (Ajit Prasad) were also arrested  in
the course of the raid and they were booked for  offences  punishable  under
Sections 3,4,5,6 and 7 of the Act.

The first FIR was investigated by the investigating officer and  the  report
under Section 173 of Cr.P.C. was filed before the Chief Judicial  Magistrate
(for short “CJM”) for taking cognizance  of  the  offences  alleged  against
them. The learned CJM, Kishanganj took cognizance of  the  alleged  offences
vide his order dated 06.08.2008.

In the meantime, both the appellants moved applications for grant  of  bail.
It is alleged that in those bail applications both the appellants  furnished
wrong information regarding their names, father’s name and address.

On the written complaint of  Shri  Arvind  Kumar  Singh,  the  Inspector  of
Police, Kishanganj police station another FIR No. 183 of  2008  (hereinafter
referred to as the “second FIR”) dated  03.07.2008  was  registered  against
both the appellants for the offences punishable under Sections 419  and  420
of Indian Penal Code, 1860 (for short “IPC”).  The allegations made  therein
were  that  both  the  appellants  furnished  wrong   information   to   the
investigating officer regarding  their  names,  father’s  name  and  address
during the course of investigation made on the first FIR  and  also  in  the
bail applications filed by them  before the learned CJM in the case  arising
out of first FIR.

The second FIR was investigated by the investigating officer  and  a  report
under Section 173 of Cr.P.C. was filed before  CJM,  Kishanganj  for  taking
cognizance of the offences alleged against the appellants. The  learned  CJM
took cognizance of the alleged offences vide order dated 11.09.2008.

The appellants filed  revision  petitions  before  the  Additional  Sessions
Judge, Purnea against  the  first  order  of  cognizance  dated  06.08.2008,
passed by CJM, Kishanganj. The learned  Additional  Sessions  Judge,  Purnea
vide order dated 18.12.2010 has set  aside  the  said  order  of  cognizance
passed by CJM, Kishanganj holding that no  offence  under  Sections  3,4,5,6
and 7 of the Act as alleged in  the  first  FIR  is  made  out  against  the
appellants.

Thereafter, the  appellants  filed  an  application  under  Section  239  of
Cr.P.C. before Judicial Magistrate of first class, Kishanganj seeking  their
discharge from the offences alleged in the second FIR. The learned  Judicial
Magistrate of first class, Kishanganj after a perusal of material on  record
found no merit in the application under Section  239  of  Cr.P.C.  filed  by
them and accordingly dismissed the same vide his order dated 04.12.2013.

Being aggrieved  of  the  order  dated  04.12.2013  passed  by  the  learned
Judicial Magistrate of first class, the appellants approached the  Court  of
Sessions, Purnea by filing the Criminal Revision Petition No.  12  of  2014.
The learned Sessions Judge, Purnea concurred with the findings  recorded  in
the impugned order passed  by  the  learned  Judicial  Magistrate  of  first
class, Kishanganj and dismissed the said revision petition vide order  dated
03.02.2014.

The appellants being aggrieved of  the  order  dated  03.02.2014  passed  by
learned Sessions Judge, Purnea filed Crl. Misc. No.  13700  of  2014  before
the High Court of Judicature at Patna for quashing of the said order.

The learned Single Judge of  the  High  Court  of  Patna  vide  order  dated
14.10.2014  dismissed the said petition holding  that  at  present  case  is
surviving against the appellants which has  arisen out  of  the  second  FIR
and the criminal proceedings arising out of first FIR has already  been  set
aside.  The learned Single  Judge  did  not  find  any  merit  in  the  said
petition filed before her and she accordingly  dismissed  the  same  with  a
direction to the Trial Court to conclude  the  trial  expeditiously.  Hence,
this appeal with request to set aside the same  and  allow  the  application
made under Section 239 of Cr.P.C. by the appellants seeking their  discharge
of the offences alleged in the second FIR.

Mr. Akhilesh Kumar Pandey, the learned counsel on behalf of  the  appellants
contended that the High  Court  has  failed  to  appreciate  the  fact  that
offences under the second FIR were allegedly committed during the course  of
investigation made on the first  FIR,  thus,  it  forms  the  part  of  same
transaction with the  offences  in  respect  of  which  the  first  FIR  was
registered. Therefore, instead of institution of the second FIR,  a  further
investigation as provided under sub-Section (8) to Section  173  of  Cr.P.C.
should have been done in respect of the offences alleged  under  second  FIR
with the leave  of  the  court.  But,  no  such  further  investigation  was
conducted by the investigating officer in  respect  of  the  said  offences.
Thus, it is urged that the registration of second FIR  is  wholly  untenable
in law and therefore liable to be quashed.

It was further contended by him that the reasons given by the High Court  in
the impugned order in dismissing the Crl. Misc. Petition  holding  that  the
proceedings arising out of first FIR has  already  been  set  aside  and  at
present one more case is surviving against the  appellants  arising  out  of
second FIR is not tenable in law, for the reason  that  the  offences  under
the second FIR are of the same transaction with the first FIR as  they  were
allegedly committed in the course of investigation made on  the  first  FIR.
Thus, there was no need for the institution of second FIR against  them.  He
further submitted that the registration of second FIR is  illegal  and  void
ab-initio in law as the same  is  in  violation  of  Article  20(2)  of  the
Constitution of India and also  contrary  to  Section  300  of  Cr.P.C.  and
Section 26 of the General Clauses Act, 1897.

 He further vehemently contended that  the  High  Court  has  erred  in  not
appreciating the law regarding the impermissibility of registration  of  the
second FIR against the appellants in respect  of  an  offence  or  different
offences committed in the course  of  same  transaction.  He  placed  strong
reliance upon paras 37, 38 and 58.3 of the judgment of  this  Court  in  the
case of Amitbhai Anilchandra Shah  v.  Central  Bureau  of  Investigation  &
Anr.[1], which relevant paragraphs are extracted in  the  reasoning  portion
of this judgment.

He further submitted that the  High  Court  has  failed  to  appreciate  the
important aspect of the case that the  second  FIR  registered  against  the
appellants for the  offences  alleged  to  have  committed  forms  the  same
transaction and therefore, registering another case against  the  appellants
is not permissible in law as laid down by this Court in  the  case  referred
to supra and the same  is  against  the  principle  of  double  jeopardy  as
enshrined in Article 20(2) of the Constitution of India. Thus, the  impugned
order passed by the High Court is vitiated in law and the same is liable  to
be set aside by this Court in exercise of its appellate jurisdiction.

It was further contended by him that the High Court has not appreciated  the
fact  that  even  on  merits  both  the  appellants  never  furnished  wrong
information to the investigation  officer  about  their  identity.  In  this
regard, he had submitted that during the  course  of  investigation  on  the
first FIR the investigation officer, after verification found  the  name  of
appellant no.1  to  be  Awadesh  Kumar  Jha  and  not  Akhilesh  Kumar  Jha.
Similarly, with regard to appellant no.2, his father’s name was  also  found
to be Late Ramanand, Prasad. The learned counsel urged that  appellant  no.1
Awadesh Kumar Jha is also known as Akhilesh Kumar Jha.  The  same  fact  has
also been certified by  Mukhiya,  Gram  Panchayat  Sonma,  Purnea  district.
Further, the father’s name of appellant no.2, Ajit Prasad is  Late  Ramendra
Prasad, who was also known as Late Ramananda  Prasad.  Therefore,  both  the
appellants cannot be said to have furnished any  wrong  information  to  the
investigation officer regarding their identity  as  alleged  in  the  second
FIR.

 It was further  contended  by  him  that  the  High  Court  has  failed  to
appreciate  another  important  fact  that  both  the  appellants  were  not
instrumental in creating any dubious document for the  purpose  of  cheating
the police as alleged in the second FIR. The first FIR was recorded  by  the
police officer and thus, both the appellants should not be held  responsible
for wrong information written by the Police in the first FIR.

The learned counsel for the appellants prayed for allowing this  appeal  and
requested this Court to set aside the impugned  order  passed  by  the  High
Court and requested for discharge of both the  appellants  for  the  alleged
offences under the second FIR.

 Per contra, Mr. Rudreshwar Singh, the learned  counsel  on  behalf  of  the
respondent-State sought to justify the impugned order  passed  by  the  High
Court and the order passed by  the  learned  Judicial  Magistrate  of  first
class dismissing the application under Section 239 of Cr.P.C. filed  by  the
appellants for the alleged offences under second FIR on the ground that  the
same  are  well  founded  and  are  not  vitiated  in  law.  Therefore,   no
interference with the same by this Court is  required  in  exercise  of  its
appellate jurisdiction.

We have carefully examined the rival contentions urged  on  behalf  of  both
the parties and  the  decision  of  this  Court  in  the  case  of  Amitbhai
Anilchandra Shah case (supra) upon which the strong reliance  is  placed  by
the learned counsel for the appellants. The relevant paras of the  abovesaid
case cited by him read thus :-

“37.  This  Court  has  consistently  laid  down  the  law  on   the   issue
interpreting the Code, that a  second  FIR  in  respect  of  an  offence  or
different offences committed in the course of the same  transaction  is  not
only impermissible but it violates Article 21 of the Constitution.  In  T.T.
Antony, this Court has categorically held that registration  of  second  FIR
(which is not a cross-case) is violative of Article 21 of the  Constitution.
The following conclusion in paras  19,  20  and  27  of  that  judgment  are
relevant which read as under: (SCC pp. 196-97 & 200)
“19. The scheme of CrPC is that an officer in charge  of  a  police  station
has to commence investigation as provided in Section 156 or 157 CrPC on  the
basis of entry of the first information report, on coming  to  know  of  the
commission of a cognizable offence. On completion of  investigation  and  on
the basis of the evidence  collected,  he  has  to  form  an  opinion  under
Section 169 or 170 CrPC, as the case may be, and forward his report  to  the
Magistrate concerned under Section 173(2) CrPC. However, even  after  filing
such a report, if  he  comes  into  possession  of  further  information  or
material, he need not register a fresh FIR; he is empowered to make  further
investigation, normally with the  leave  of  the  court,  and  where  during
further investigation he collects further evidence, oral or documentary,  he
is obliged to forward the same with one or more  further  reports;  this  is
the import of sub-section (8) of Section 173 CrPC.

20. From the above discussion it  follows  that  under  the  scheme  of  the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173  CrPC  only
the earliest or the first information in  regard  to  the  commission  of  a
cognizable offence satisfies the requirements  of  Section  154  CrPC.  Thus
there can  be  no  second  FIR  and  consequently  there  can  be  no  fresh
investigation on receipt of every subsequent information in respect  of  the
same cognizable offence or the same occurrence or incident  giving  rise  to
one  or  more  cognizable  offences.  On  receipt  of  information  about  a
cognizable offence or an incident giving rise to  a  cognizable  offence  or
offences and on entering the FIR in the station house diary, the officer  in
charge of a police station has to  investigate  not  merely  the  cognizable
offence reported in the FIR but also other connected offences found to  have
been committed in the course of the same transaction or the same  occurrence
and file one or more reports as provided in Section 173 CrPC.

  xx         xx          xx

27. A just balance between the fundamental  rights  of  the  citizens  under
Articles 19 and 21 of the  Constitution  and  the  expansive  power  of  the
police to investigate a cognizable offence has to be struck  by  the  court.
There cannot be any controversy that sub-section (8)  of  Section  173  CrPC
empowers the police to make further investigation, obtain  further  evidence
(both oral and documentary) and forward a further report or reports  to  the
Magistrate. In Narang case it  was,  however,  observed  that  it  would  be
appropriate to conduct further investigation  with  the  permission  of  the
court. However,  the  sweeping  power  of  investigation  does  not  warrant
subjecting a citizen each time to  fresh  investigation  by  the  police  in
respect of the  same  incident,  giving  rise  to  one  or  more  cognizable
offences, consequent upon filing of successive FIRs whether before or  after
filing the final report under Section  173(2)  CrPC.  It  would  clearly  be
beyond the purview of Sections 154 and 156 CrPC, nay, a  case  of  abuse  of
the statutory power of investigation in a given case. In our view a case  of
fresh investigation based on the second or  successive  FIRs,  not  being  a
counter-case, filed in connection with  the  same  or  connected  cognizable
offence  alleged  to  have  been  committed  in  the  course  of  the   same
transaction and in respect  of  which  pursuant  to  the  first  FIR  either
investigation is under way or final report under  Section  173(2)  has  been
forwarded to the Magistrate, may be a fit case for exercise of  power  under
Section 482 CrPC or under Articles 226/227 of the Constitution.”

The abovereferred declaration of law by this Court has  never  been  diluted
in  any  subsequent  judicial  pronouncements   even   while   carving   out
exceptions.

38. Mr Raval, learned ASG, by referring T.T. Antony submitted that the  said
principles are not applicable and relevant to the  facts  and  circumstances
of this case as the said judgment laid down the ratio that there  cannot  be
two FIRs relating to  the  same  offence  or  occurrence.  The  learned  ASG
further pointed out that  in  the  present  case,  there  are  two  distinct
incidents/occurrences, inasmuch as one being the conspiracy relating to  the
murder of Sohrabuddin with the help of  Tulsiram  Prajapati  and  the  other
being the conspiracy to murder Tulsiram Prajapati — a potential  witness  to
the earlier conspiracy to murder Sohrabuddin. We are unable  to  accept  the
claim of the learned ASG. As a matter of fact, the aforesaid proposition  of
law making registration of fresh FIR impermissible and violative of  Article
21 of the  Constitution  is  reiterated  and  reaffirmed  in  the  following
subsequent decisions of this Court: (1) Upkar  Singh  v.  Ved  Prakash,  (2)
Babubhai v. State of Gujarat, (3) Chirra Shivraj v. State of A.P.,  and  (4)
C. Muniappan v. State of T.N. In  C.  Muniappan  this  Court  explained  the
“consequence test” i.e. if an offence forming part of the second FIR  arises
as a consequence of the offence alleged  in  the  first  FIR  then  offences
covered by both the FIRs are the same and, accordingly, the second FIR  will
be impermissible in law. In other words, the offences covered  in  both  the
FIRs shall have to be treated as a part of the first FIR.

  xx           xx             xx

58.3. Even after filing of such a report, if he  comes  into  possession  of
further information or material, there is no need to register a  fresh  FIR,
he is empowered to make further investigation normally  with  the  leave  of
the court and  where  during  further  investigation,  he  collects  further
evidence, oral or documentary, he is obliged to forward the  same  with  one
or more further reports which is evident from  sub-section  (8)  of  Section
173 of the Code. Under the scheme of the provisions of  Sections  154,  155,
156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the  first
information in regard to the commission of a  cognizable  offence  satisfies
the requirements of Section 154 of the Code. Thus, there can  be  no  second
FIR and, consequently, there can be no fresh  investigation  on  receipt  of
every subsequent information in respect of the same  cognizable  offence  or
the same occurrence or incident  giving  rise  to  one  or  more  cognizable
offences.”

The second FIR was registered against the appellants on a written  complaint
of Arvind Kumar Singh, Inspector of Police at Kishanganj police station.  It
was found by the investigating officer during the  course  of  investigation
in the first FIR that real name of the appellant no.1 was Awadesh Kumar  Jha
s/o Late Kaladhar Jha r/o Gram Akbarpur, District Purnea and  was  found  to
be working as Development  Officer  at  New  India  Assurance  Company  Ltd.
Branch Purnia, contrary to the same the personal information  was  furnished
by him at  the  time  of  investigation  of  the  case  on  the  first  FIR.
Similarly, with regard to the appellant no.2 his father’s name was found  to
be Late Ramendra Prasad and not Late Ramanand. His actual address was  found
to be Ranipatti P.S. Kumarkhand, District Madhepura and he was found  to  be
working as surveyor and investigator of all branches  of  General  Assurance
Company. It is also alleged in the second FIR that both the  appellants  had
not  disclosed  their  correct  names,  father’s  name,  their  address  and
occupation in the bail applications filed by them in  respect  of  the  case
arising out of first FIR before the Additional Sessions Judge.

 From a bare perusal of second FIR, it is abundantly  clear  that  both  the
appellants have furnished wrong  information  to  the  police  as  to  their
names, father’s name and address during the course of investigation made  on
the first FIR. This Court is of the view that the offences alleged  to  have
committed by them are mentioned in second FIR, which offences  are  distinct
offences committed by both the appellants and the same  have  no  connection
with the offences for which the  first  FIR  was  registered  against  them.
Therefore, for the reason stated supra, the contention urged by the  learned
counsel on behalf of both the appellants  that  instead  of  institution  of
second FIR for the said offences, a further investigation as provided  under
sub-Section (8) to Section 173 of Cr.P.C.  should  have  been  done  by  the
investigation officer  on  the  ground  of  they  being  the  part  of  same
transaction with offences registered under first FIR is wholly untenable  in
law and liable to be rejected.

Further, the decision of this Court in  the  case  of  Amitbhai  Anilchandra
Shah (supra) upon which strong reliance is placed by the learned counsel  on
behalf of both the appellants does not render any assistance to them in  the
case at hand. This Court in the  said  case  after  examining  the  relevant
provisions of Cr.P.C. has categorically held thus:-
“58.2. The various provisions of the  Code  of  Criminal  Procedure  clearly
show  that  an  officer-in-charge  of  a  police  station  has  to  commence
investigation as provided in Section 156 or 157 of the Code on the basis  of
entry of the first information report, on coming to know of  the  commission
of cognizable offence. On completion of investigation and on  the  basis  of
the evidence collected, the investigating officer has  to  form  an  opinion
under Section 169 or  170  of  the  Code  and  forward  his  report  to  the
Magistrate concerned under Section 173(2) of the Code.

58.3. Even after filing of such a report, if he  comes  into  possession  of
further information or material, there is no need to register a  fresh  FIR,
he is empowered to make further investigation normally  with  the  leave  of
the court and  where  during  further  investigation,  he  collects  further
evidence, oral or documentary, he is obliged to forward the  same  with  one
or more further reports which is evident from  sub-section  (8)  of  Section
173 of the Code. Under the scheme of the provisions of  Sections  154,  155,
156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the  first
information in regard to the commission of a  cognizable  offence  satisfies
the requirements of Section 154 of the Code. Thus, there can  be  no  second
FIR and, consequently, there can be no fresh  investigation  on  receipt  of
every subsequent information in respect of the same  cognizable  offence  or
the same occurrence or incident  giving  rise  to  one  or  more  cognizable
offences.

    xx              xx               xx

58.5.  The  first  information  report  is  a  report  which   gives   first
information with regard to any  offence.  There  cannot  be  second  FIR  in
respect of the same offence/event because whenever any  further  information
is received by the investigating agency, it is always in furtherance of  the
first FIR.”

       (emphasis supplied by this Court)


It is well settled principle of law that there can be no second FIR  in  the
event of any further information being received by the investigating  agency
in respect of offence or the same occurrence or incident giving rise to  one
or more offences for  which  chargesheet  has  already  been  filed  by  the
investigating agency. The recourse available with the  investigating  agency
in the said situation is to conduct further investigation normally with  the
leave of the court as provided under  sub-Section  (8)  to  Section  173  of
Cr.P.C. The reliance is placed on the decision of  this  court  rendered  in
T.T.Antony v. State of Kerala[2], relevant paras of which read thus:
“19. The scheme of CrPC is that an officer in charge  of  a  police  station
has to commence investigation as provided in Section 156 or 157 CrPC on  the
basis of entry of the first information report, on coming  to  know  of  the
commission of a cognizable offence. On completion of  investigation  and  on
the basis of the evidence  collected,  he  has  to  form  an  opinion  under
Section 169 or 170 CrPC, as the case may be, and forward his report  to  the
Magistrate concerned under Section 173(2) CrPC. However, even  after  filing
such a report, if  he  comes  into  possession  of  further  information  or
material, he need not register a fresh FIR; he is empowered to make  further
investigation, normally with the  leave  of  the  court,  and  where  during
further investigation he collects further evidence, oral or documentary,  he
is obliged to forward the same with one or more  further  reports;  this  is
the import of sub-section (8) of Section 173 CrPC.
   xx           xx              xx
21. ...The 1973 CrPC specifically provides for further  investigation  after
forwarding  of  report  under  sub-section  (2)  of  Section  173  CrPC  and
forwarding of further report or reports to the  Magistrate  concerned  under
Section 173(8) CrPC. It follows that if the gravamen of the charges  in  the
two FIRs — the first and the second — is in truth and  substance  the  same,
registering the second FIR and making  fresh  investigation  and  forwarding
report under Section 173 CrPC will be irregular and the  court  cannot  take
cognizance of the same.”
                    (emphasis supplied)


However, this principle of law is not applicable to the  fact  situation  in
the instant case as the substance of the allegations in the  said  two  FIRs
is different. The first FIR deals with offences  punishable  under  Sections
3,4,5,6 and 7 of the Act, whereas, the second FIR deals  with  the  offences
punishable under Sections 419 and 420 of  IPC  which  are  alleged  to  have
committed during the course of investigation of the case in the  first  FIR.
This Court is of the view that the alleged offences under the second FIR  in
substance are distinct from the  offences  under  the  first  FIR  and  they
cannot, in any case, said to be in the form of the part of same  transaction
with the alleged offences under the first FIR.  Therefore,  no  question  of
further investigation could be made  by  the  investigating  agency  on  the
alleged offences arisen as the term “further investigation”  occurred  under
sub-Section (8) to Section 173 of Cr.P.C. connotes the investigation of  the
case in continuation of the earlier investigation with respect to which  the
 chargesheet has already been filed. The reliance is placed on the  judgment
of this Court in the case of  Rama  Chaudhary  v.  State  of  Bihar[3],  the
relevant para 17 reads thus:
“17. From a plain reading of sub-section (2) and sub-section (8) of  Section
173, it is evident that even after submission of  the  police  report  under
sub-section (2) on completion of the investigation, the police has  a  right
to “further” investigation under sub-section (8)  of  Section  173  but  not
“fresh investigation” or “reinvestigation”.  The  meaning  of  “further”  is
additional, more, or supplemental. “Further”  investigation,  therefore,  is
the continuation of the earlier investigation and not a fresh  investigation
or  reinvestigation  to  be  started  ab  initio  wiping  out  the   earlier
investigation altogether.”
                   (emphasis supplied)
Therefore, for the above said reasons the  submissions  made  on  behalf  of
both the appellants are not tenable in law and the same cannot  be  accepted
by this Court. Further, the case of Amitbhai Anilchandra Shah  (supra)  upon
which strong reliance  is  placed  by  the  learned  counsel  for  both  the
appellants is also totally inapplicable to the fact situation  and  it  does
not support the case of both the appellants.

For the reasons stated supra, this Court does not find any reason either  to
interfere with the impugned order passed by  the  High  Court  or  with  the
order of dismissal dated 04.12.2013 passed by the Judicial Magistrate  first
class, Kishanganj, on the application made  under  Section  239  of  Cr.P.C.
filed by the appellants. Accordingly, this appeal being devoid of  merit  is
dismissed. The order dated 09.02.2015 granting stay shall be vacated.


                    ……………………………………………………CJI.
                    [T.S. THAKUR]



                             …………………………………………………………J.
                             [V. GOPALA GOWDA]

New Delhi,
January 7, 2016
ITEM NO.1A-For Judgment    COURT NO.10               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s). 15/2016 arising from SLP(Crl.) No.975/2015

AWADESH KUMAR JHA @ AKHILESH KUMAR JHA & ANR.      Appellant(s)

                                VERSUS

THE STATE OF BIHAR                                 Respondent(s)

Date : 07/01/2016 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. Akhilesh Kumar Pandey,Adv.

For Respondent(s)
                     Mr. Samir Ali Khan,Adv.


      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising Hon'ble the Chief Justice and His Lordship.
      Leave granted.
      The  appeal  is  dismissed  in  terms  of  the  signed  Non-Reportable
Judgment.

        (VINOD KUMAR)                    (MALA KUMARI SHARMA)
         COURT MASTER                        COURT MASTER
 (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]     (2013) 6 SCC 348
[2]     (2001) 6 SCC 181
[3]     (2009) 6 SCC 346

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