THE HON'BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT APPEAL NOs.1586; 1587 OF 2012
4-1-2013
D. Kasaiah
Sunkara Srinivasulu others
COUNSEL FOR APPELLANT: Sri Vinay Kamisetty
COUNSEL FOR RESPONDENT NOs.1 to 4: Sri Gopala Krishna Kalanidhi
COUNSEL FOR RESPONDENT NO.5: G.P. for Home
COUNSEL FOR RESPONDENT NO.6:
COUNSEL FOR RESPONDENT NO.8 and 9: Sri J. Janikirami Reddy
<GIST
>HEAD NOTE:
?CITATIONS: 1. AIR 1945 PC 18
2. AIR 1960 SC 866
3. 1992 Supp (1)SCC 335 : 1992 SCC (Cri) 426
4. (2005) 13 SCC 540
5. (1998) 8 SCC 728
6. (1990) Supp. SCC 686
7. (1995) 2 SCC 370
8. 2004 (6) ALT 757 = 2004(6) ALD 855
9. (1992) 3 SC 317
10. (2001) 6 SCC 181
11. 3 (1979) 2 SCC 322
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice)
1. Whether, on the ground that there was manipulation of the First
Information Report by Officer in charge of Police Station while registering a
crime, the First Information Report as also the criminal proceedings commenced
on the basis of a charge sheet laid thereunder before the Magistrate are liable
to be quashed
is the question that arises for consideration in these appeals
filed by the de facto complainant and the then Station House Officer, Owk
Police Station, Kurnool District respectively against the common order of the
learned single Judge in W.P.No.24030 of 2010 and Crl. Petition No.5521 of 2012
dated 3.12.2012 quashing the FIR in Cr.No.94/2010 of Owk Police Station and the
proceedings before the Judicial Magistrate of First Class, Banaganapalli in
C.C.No.254 of 2010.
2. Incidentally, while quashing the First Information Report in Cr.No.94/2010
and the proceedings in C.C.No.254 of 2010, the learned single Judge also issued
a direction to the Superintendent of Police, Kurnool to keep the then Station
House Officer, Owk Police Station (2nd respondent in the Writ Petition) under
suspension forthwith and launch necessary disciplinary proceedings under Andhra
Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 or/and
any other relevant Rules as well as criminal proceedings for the offences
committed by him and report compliance of the same to this Court immediately.
While Writ Appeal No.1586 of 2012 is filed by the de facto complainant
(2nd respondent in Crl.P.No.5521 of 2012 and 3rd respondent in W.P.No.24030 of
2010) Writ Appeal No.1587 of 2012 is preferred by the then Station House
Officer, Owk P.S. who is impleaded as Respondent No.3 in the writ petition.
3. The Writ Petition is filed by the accused in Cr.No.94/20110 for a writ of
mandamus declaring the action of the Station House Officer in registering the
crime as arbitrary, illegal and vitiated by colourable exercise of power
violating the provisions of the Constitution of India.
The Criminal Petition is
filed under Section 482 of the Code of Criminal Procedure to call for the
records in C.C.No.254 of 2010 dated 4.10.2010 on the file of the Judicial
Magistrate of first Class, Banaganapalli and to quash the proceedings therein.
4. Before we deal with the issue we are of the view that the learned single
Judge while recording a finding that there was manipulation of the First
Information Report by the Station House Officer in registering the complaint is
not justified in quashing the First Information Report in its entirety as also
the criminal proceedings already commenced by the Magistrate, without examining,
whether, notwithstanding the alleged manipulation, the later First Information
Report which has been registered and forwarded to the jurisdictional Court, so
far as it is consistent with the earliest one, would sustain to set the
criminal law in motion and to continue the criminal proceedings, because, the
Apex Court by a long series of decisions held that the inherent powers under
Section 482 of the Criminal Procedure and the extraordinary powers under Article
226 of the Constitution of India to quash a First Information Report and
criminal proceedings should be exercised by the High Courts sparingly except in
cases where the complaint or First Information Report broadly read does not
disclose any offence and can be termed as an abuse of process of law.
5. The First Information Report herein relates to an incident that had taken
place on 23.6.2010 at about 2.00 p.m. before the Office of the Sub-Registrar,
Owk, Kurnool Distrct.
On information received from the Sub-Registrar, the de
facto complainant (D. Kasaiah), the appellant herein, who is working as Head
Constable of Owk Police Station along with P.C.2605 and P.C.2551 rushed to the
Sub-Registrar's Office where he found 1. Chinna Venkateswarlu, 2. Midde
Srramulu, both residents of Owk village, 3. Srinivaslu who is working as Head
Constable, Pathikonda Police Station and his two sons are quarrelling each
other, when the de facto complainant tried to stop the quarrel and tried to
bring them to the Police Station, Mr. Srinivasulu abused P.C.2605 stating that
he is also a police constable and know the rules and how dare they could take
them to the Station and so saying abused and caught hold of his collar who was
in uniform obstructing them from discharging their official duties.
This
complaint was signed by the de facto complainant - HC 122 and received by the
Station House Officer - (2nd respondent in the Writ Petition) at 3.00 p.m. on
the same day and who endorsed and registered it as Cr.No.94/2010 against 1.
Chinna Venkateswarlu, 2. Midde Sriramulu, 3. Sunkara Srinivasulu, 4. Sunkara
Sreedhar and 5. Sunkara Venkatesh. The petitioners placed on record a
computerized copy of the said FIR registered by the S.H.O. as Crime No.94/2010.
6. It appears, however, the de facto complainant again gave another complaint
on the same day changing the contents of the complaint. This improved version of
complaint says that when the de facto complainant tried to stop the quarrel and
tried to bring them to the Police Station, Midde Sriramulu, Head Constable
Srinivasulu and his two sons stated that they know the rules, Srinivasulu stated
that he is working as Police Head Constable, then they stated that they won't
come to station and they can do whatever they want to do, so saying they abused
and caught hold of the collar of P.C.2605 who was in uniform saying how dare
they are and accordingly the above four persons defamed them and obstructed them
from discharging their lawful duties, therefore, it was reported to the S.I. of
Police to take action against Midde Sreeramulu, Head Constable Srinivasulu and
his two sons.
This was also registered as Crime No.94/2010 for the offence
under section 354 read with 34 IPC at the same time ie. 3.00 p.m on the same
day but in a printed proforma duly filled in manually.
7. The petitioner in the writ petition stated that with the same crime
number- 94/2010 - two FIRs were registered by the SHO in respect of the same
crime based on two different written complaints lodged by the de facto
complainant and endorsed by the S.H.O. The later complaint enlarged the scope
of the earlier complaint and certain other overt acts were attributed by
misusing the office and abusing the process of the Court and deleted the name of
Chinna Venkateswarlu within hours from the registration of the earliest first
information report thereby the petitioner and his brother were specifically
implicated in the offence.
8. In the first counter filed by the Station House Officer there is no
reply to the above averments made by the petitioner. However, in the additional
counter filed by him it is stated that due to oversight the computer operator
who fed the contents of the FIR in the online system, mentioned the name of
Chinna Venkateswarlu arraying him as A.1 though he is in no way concerned with
the offence and the rest of the names in the FIR are shown as it is in the
online system and this had occurred due to oversight and there were no two FIRs.
9. The learned single after perusing the original general diary produced by
the Superintendent of Police by the order impugned held:
"5. When this Court directed the official respondents to produce general
diary of the police station, the official respondents exhibited their audacity
by throwing into this Court Photostat copy of two sheets styled as general diary
dated 23.6.2010, without any authentication. Therefore, this Court directed the
Superintendent of Police, Kurnool district to produce original general diary of
the police station for the relevant period. The Superintendent of Police,
Kurnool District attended this Court in person and produced original general
diary. In the Photostat copy of general diary of two sheets thrown into Court
by the Assistant Government Pleader, there is no entry at 15.00 hours. But, in
original general dairy produced by Superintendent of Police in this Court, there
is entry at 15.00 hrs on 23.6.2010. The said entry in general diary does not
reveal any explanation offered by Sub-Inspector of Police in his counter-
affidavit and additional counter-affidavit. There is attempt on the part of the
said Sub-Inspector to manipulate entries in general diary also by preparing a
copy which is stated to be a Photostat copy, prepared by suppressing the
relevant entry relating to this crime at 15.00 hrs. There are no entries in
general diary relating to receipt of two different first informations of the de
facto complainant and issuing two types of FIRs in the same Cr.No.94 of 2010.
The Sub-Inspector of Police also gave false affidavits in this Court on issuing
two different first in the same Cr.No.94 of 2010. Therefore, FIR in Cr.No.94 of
2010 which is vitiated by illegality as well as manipulation coupled with
subverting criminal justice system cannot be allowed to stand and it is liable
to be quashed under Article 226 of the Constitution of India.
6. When basic document in the crime namely FIR is being quashed, edifice
built on such manipulated FIR by way of final report/charge sheet cannot have
legs to stand; and consequently the criminal proceedings in C.C.No.254 of 2010
on the file of Judicial Magistrate of the First Class, Banaganapalli are also
liable to be quashed in exercise of power under Section 482 Cr.P.C."
10. It was argued on behalf of the appellant-de facto complainant who filed
the present appeal that
a complaint given under a mistake of fact or by human
error, the same can be changed and amended and a procedure has been prescribed
for the same.
For the purpose an application has to be made to the District
Superintendent of Police by the concerned SHO for correction of content of
complaint and in turn the Superintendent of Police will forward the same to
Central Server, Police Computer Services (PCS) situated at the Office of
Director General of Police, Hyderabad and upon permission Superintendent of
Police will permit the concerned Station House Officer to make necessary
corrections and in the instant case the entire procedure has been followed and
referred to the letter dated 18.3.2011 of the Station House Officer addressed to
the Superintendent of Police, Kurnool and letter dated 12.5.2011 addressed by
the DIG, Kurnool to the Inspector General of Police, Police Computer Services &
Standardisation for modification of the FIR in Cr.No.94/2010 of Owk Police
station.
The learned counsel appearing for the appellant in W.A.No.1587 of 2012
supported the arguments advanced on behalf of the de facto complainant and
further submitted that in any event in the facts and circumstances of the case
the learned single Judge is not justified in directing the Superintendent of
Police to place the appellant under suspension.
11. The learned counsel appearing for the respondents-writ petitioners
supporting the order of the learned single Judge submitted that there was a
clear manipulation of the first information report submitted by the de facto
complainant and the code of Criminal Procedure doesn't permit registration of
two FIRs in respect of the same offence. He further submitted that the
rectification of the error, if at all permissible, as contended by the learned
counsel for the appellant, was much subsequent to the filing of the charge sheet
and the writ petition and in fact there was no permission given by the superior
authority.
12. As we can see from paras 4 and 5 above, the variation in the two different
complaints given by the de facto complainant who is none else than the Head
Constable of the Owk Police Station is manifest that while in the first report
Sri Srinivasulu alone was directly implicated in the offence others were not
directly implicated, in the later report all the four persons were directly
implicated and it was specifically complained that action may be taken against
Midde Srramulu, Head Constable Srinivasulu and his two sons which version is not
there in the first complaint. Chinna Venkateswasrlu who was arrayed as A.1 in
the earliest FIR was not implicated. This later complaint was also signed by
the de facto complainant - HC 122, appellant herein, and received by the
Station House Officer - (2nd respondent in the writ petition) at the same time
i.e. 3.00 p.m on the same day who again endorsed and registered it with the same
number i.e. Cr.No.94/2010 on 23.6.2010 for the offence punishable under section
353 IPC read with 34 IPC against 1. Sunkara Srinivaslu, 2. Sunkara Sreedhar, 3.
Sunkara Venkatesh and 4. Mide Sriramulu only and the name of Sri Chinna
Venkateswarlu was omitted as accused. This FIR was however filled in manually
in a printed proforma, not on a computerized format. This changed FIR together
with the improved complaint were only sent to the jurisdictional Magistrate on
24.10.2010 who received it at 1.44 p.m.
13. On the basis of the later complaint the Station House Officer (2nd
respondent in the writ petition) filed charge sheet into Court on 31.7.2010 and
the same was taken cognizance by the Magistrate and registered it as a Calendar
Case. Though an order of interim stay was granted by this Court in
W.P.M.P.No.30764 of 2010 the Magistrate was not in receipt of the same by the
time the charge sheet was taken on file by the Magistrate.
14. From a perusal of the two FIRs registered by the SHO, one in computerized
proforma and the other in a printed proforma filled in manually, we have no
manner of doubt that there was a clear manipulation of FIR not only by the de
facto complainant but also by the Station House Officer in charge of station who
endorsed both the versions of First Information Report on the written complaints
lodged by the de facto complainant. The Station House Officer has to explain
as to how and under what circumstances he received the later FIR from the de
facto complainant and registered it again as a crime assigning the same number
when the first FIR was already received and registered it as a crime. His
explanation that there was a mistake on the part of the computer operator in
feeding the data and taking a print out was rightly not accepted by the learned
single Judge. If really there was a mistake on the part of the Computer Operator
in feeding the data into on line as stated by the SHO, an entry in that regard
ought to have been made in the General Diary as to the circumstances under which
a second report was lodged by the de facto complainant when the earliest report
was already registered. There is no explanation whatsoever as to why two FIRs
were lodged by the de facto complainant and why he has endorsed both and
registered and why there is no entry in the General Diary in regard to the
earliest complaint. His further explanation that there was permission for
substitution of the same cannot also be accepted, because the Criminal Procedure
Code nowhere provide for any such substitution or for registering two FIRs in
respect of the same crime. Therefore, it is manifest that the Station House
Officer being in charge of the Police Station has ignored the basic principles
in registering an FIR and encouraged for manipulation of the FIR for reasons
best known to him. No permission, even if it is permissible, for substitution
was placed on record. It is only that a letter dated 18.3.2011 which has been
addressed to the Superintendent of Police by the S.H.O. and another letter
dated 12.5.2011 addressed by the DIG, Kurnool to the Inspector General of
Police, Police Computer Services and Standardization, Hyderabad requesting to
modify option of FIRs in Cr.No.94/2010 were placed on record.
15. Further, it is interesting to note that in the letter dated 18.3.2011
addressed to the Superintendent of Police, it is stated that "After create the
FIR in APPM, as per the orders of superior officers, prepared another special
report and submitted the manual FIR in the Hon'ble Court and also sent the
accused to the Hon'ble Court for remand". Therefore, it is a clear case of
manipulation where there was registration of two FIRs by the SHO on the basis of
two complaints lodged by the de facto complainant. The letter dated 12.5.2011
has also thrown the blame on the computer operator in mentioning the name of
Chinna Venkateswarlu in the online FIR though no allegations are made against
him. But no reply according permission to the same was placed on record.
Further, the Writ Petition was filed on 27.9.2010 and the counter was filed by
the SHO on 1.10.2010 and additional counter on 16.12.2011. Obviously, the above
letters dated 18.3.2011 and 12.5.2011 were written to shield the manipulation
committed by the police officers after the writ petition was filed. If really
there was a mistake on the part of the computer operator, the SHO ought to have
taken steps immediately after registering the FIR requesting the authorities for
rectification. That was not done. But, steps appear to have been taken only
subsequent to the filing of the writ petition and subsequent to the filing of
counters. Further, it is not only a case of registering two FIRs, but it is also
a case of lodging of two FIRs by the de facto complainant, surprisingly; both
were endorsed by the Station House Officer. Therefore, how the blame could be
thrown on the computer operator? If really there was one complaint and the
computer operator had committed mistake why the de facto complainant lodged
another complaint and why SHO endorsed on both the complaints lodged by the de
facto complainant? If there is a mistake in entering the data on to the online
from the earliest complaint lodged by the de facto complainant steps should have
been taken immediately for rectification but not after six months after filing
of the writ petition. In the counters filed by the SHO, he has not explained as
to the existence of two written complaints lodged by the de facto complainant
and his endorsement on both the complaints and registering both and forwarding
it only the later one to the Court. If really a mistake had crept in entering
the data, there is no need to obtain another complaint from the de facto
complaint as the mistake could be rectified at the time of filing the charge
sheet or by submitting a special report under Section 173(8) CrPC after
investigation. Further, it is not the duty of the computer operator who should
be arrayed as accused and who should not be in the FIR on the basis of the
complaint lodged; it is the duty of the Officer in charge of the Police Station
against whom the FIR should be registered on the basis of the complaint lodged.
The Officer in charge, therefore, cannot shirk from his responsibility.
16. The de facto complainant is not a lay man. He is working as Head
Constable of the Police Station and was deputed to the place of occurrence on
the information furnished by the Sub-Registrar. Therefore, the person who gave
the complaint can be said to be well versed in drafting the complaints. It can,
therefore, be said that the Station House Officer and the de facto complainant
with an oblique motive altered the first complaint obviously with an intention
to delete the name of one of the accused and to implicate some more. To improve
the scope and version in the first complaint the later complaint appears to have
been lodged after due deliberations. It may also be noticed that the incident
had taken place at 2.00 p.m. on 23.4.2010 and the first information report was
registered at 3.00 p.m on the same day whereas copy of the FIR in the manual
proforma together with the second complaint was transmitted to the Magistrate on
the next day which was received by the Magistrate at 1.44 p.m. This delay on
the part of the officer-in-charge in forwarding the FIR to the Court gives an
impression that deliberations did take place to modify or improve the FIR. Of
course, all these aspects are required to be gone into at the time of the trial.
Prima facie, on a consideration of the entire material placed on record, we are
of the view that the finding recorded by the learned single Judge that there was
manipulation of FIR does not warrant interference by us.
17. Now, the question arises for consideration is
whether on the ground that
there was manipulation in registering the crime can the Court quash the first
Information Report in its entirety and the criminal proceedings already
commenced?
In our considered opinion, the answer must be in the negative.
Sub Section (1) of Section 154 of the Code of Criminal Procedure provides that
every information relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be reduced to writing
by him or under his direction, and be read over to the informant and every
such information whether given in writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State
Government may prescribed in this behalf.
18. Therefore, the legal mandate enshrined in Section 154(1) is that every
information relating to the commission of a 'cognizable offence' as defined
under section 2(c) of the Code of Civil Procedure if given orally is to be
reduced into writing or in writing to 'an officer in charge of a police station'
and signed by the informant should be entered in a book to be kept by such
officer in such form as the State Government may prescribe which form is
commonly called 'First Information Report" and which act of entering the
information in the said book is known as registration of a crime for a case. It
is thus manifest that if any information disclosing a cognizable offence is laid
before an officer in charge of a police station satisfying the requirements of
section 154(1) of the Code, the said police officer has no other option except
to enter the substance thereof in the prescribed form, that is to say, to
register a case on the basis of such information. Therefore, there is no scope
to obtain or lodge a second report from the complainant or to alter or to
substitute with modified one under the Code of Criminal Procedure. No provision
of the Code has been brought to our notice empowering the same.
19. Dealing with the object of "First Information Report" under section 154 of
the Criminal Procedure Code, the Privy Council in EMPEROR v. KHWAJA NAZIR AHMAD1
held that the object of the provisions as to an information report (commonly
called a first information report) is to obtain early information of alleged
criminal activity, to record the circumstances before there is time for them to
be forgotten or embellished, and the report can be put in evidence when the
informant is examined if it is desired to do so. It was held just as it is
essential that every one accused of a crime should have free access to a Court
of justice so that he may be duly acquitted if found not guilty of the offence
with which he is charged, so it is of the utmost importance that the judiciary
should not interfere with the police in matters which are within their province
and into which the law imposes upon them the duty of enquiry. In India there is
a statutory right on the part of the police under Sections 154 and 156, to
investigate the circumstances of an alleged cognizable crime without requiring
any authority from the judicial authorities, and it would be an unfortunate
result if it should be held possible to interfere with those statutory rights by
an exercise of the inherent jurisdiction of the Court under Section 561A of the
Code of Criminal Procedure, 1898 (corresponding to Section 482 of Code of
Criminal Procedure, 1973).
20. In R.P. KAPUR V. STATE OF PUNJAB2 the Supreme Court has dealt with the
power of the High Court to quash criminal proceedings at an interlocutory stage
and the cases in which such power may be exercised. The Supreme Court observed
that the inherent jurisdiction of the High Court can be exercised to quash
proceedings in a proper case either to prevent the abuse of the process of any
court or otherwise secure the ends of justice. Ordinarily criminal proceedings
instituted against an accused person must be tried under the provisions of the
Code, and the High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not possible, desirable or
expedient to lay down any inflexible rule which would govern the exercise of
this inherent jurisdiction. However, the Supreme broadly stated the nature and
scope of the inherent jurisdiction of the High in the matter of quashing
criminal proceedings in the following three categories of cases where the
inherent jurisdiction to quash proceedings can and should be exercised.
1. Where it manifestly appears that there is a legal bar against the institution
or continuance of the criminal proceeding in respect of offences alleged.
2. Where the allegations in the FIR, or the complaint, even if they are taken at
their face value and accepted in their entirety, do not constitute the offence
alleged; in such cases no question of appreciating evidence arises, it is a
matter merely of looking at the complaint or the FIR to decide whether the
offence alleged is disclosed or not.
3. Where the allegations made against the accused person do constitute an
offence alleged but there is either no legal evidence adduced in support of the
case or the evidence adduced clearly or manifestly fails to prove the charge. In
dealing with this class of cases, it is important to bear in mind that
distinction between a case where is no legal evidence or where there is evidence
which is manifestly and clearly inconsistent with the accusation made and cases
where is legal evidence which on its appreciation may or may not support of the
accusation n question. In exercising he inherent jurisdiction, the High Court
would not embark upon an enquiry as to whether the evidence in question is
reliable or not. That is the function of the trial magistrate and ordinarily it
would not be open to any party to invoke the High Court's inherent jurisdiction
and contend that on a reasonable appreciation of the evidence the accusation
made against the accused would not be sustained.
21. In STATE OF HARYANA v. BHAJANLAL3 the Supreme Court observed that the
extraordinary power under Article 226 or inherent power under Section 482 of the
Code should be exercised very sparingly and with circumspection and that too in
the rarest of rare cases. The extraordinary power or inherent powers do not
confer an arbitrary jurisdiction the court to act according to its whim or
caprice. The Court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the FIR or
the complaint. The Supreme Court noted the following categories of cases wherein
the extraordinary power under Article 226 or the inherent powers under Section
482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the
process of any court or otherwise to secure the ends of justice though it may
not be possible to lay down and precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if
any, accompanying the FIR do not disclose cognizable offence, justifying an
investigation by police offers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the controverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of Magistrate as contemplated under Section
155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and
inherently probable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of the provisions of
Code or the concerned Act under which a criminal proceeding is instituted to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.
22. In STATE OF ORISSA v. SAROJ KUMAR SAHOO4 while referring to the above
decisions the Supreme Court held that while exercising the powers under section
482 Cr.P.C. the High Court does not function as a court of appeal or revision.
Inherent jurisdiction under the section, though wide, has to be exercised
sparingly, carefully and with caution and only when such exercise is justified
by the tests specifically laid down in the section itself. It is to be exercised
ex debito justitiae to do real and substantial justice for the administration of
which alone the courts exist. In exercise of the powers the court would be
justified in quashing any proceeding if it finds that initiation/continuance of
it amounts to abuse of the process of court or quashing of these proceedings
would otherwise save the ends of justice. The Supreme Court, however, cautioned
that the inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being highest court of a State should normally
refrain from giving a prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether factual or legal, are
of magnitude and cannot be seen in their perspective without sufficient
material. But no hard and fast rule as regards cases in which such power can be
exercised can be laid down.
23. Therefore, the normal rule is not to interfere with the investigation and
criminal proceedings except when the complaint or FIR broadly read does not
disclose any offence and can be termed as abuse of process of law and it is not
permissible to quash by appreciating the material evidence where charge sheet
had been filed or stifle a legitimate prosecution. In SATVINDER KAUR V. STATE5
(Govt. of NCT of Delhi) the Apex Court held that the legal position is well
settled that if an offence is disclosed the Court will not normally interfere
with an investigation into the case and will permit investigation in to the
offence alleged to be completed.
24. In DHANALAKSHMI V. R. PRASANNA KUMAR6, the Supreme Court observed "Section
482 empowers the High Court to exercise its inherent powers to prevent abuse of
the process of court. In proceedings instituted on complaint exercise of the
inherent power to quash the proceedings is called for only in cases where the
complaint does not disclose an offene or is frivolous, vexations or oppressive.
If the allegations set out in the complaint do not constitute the offence of
which cognizance is taken by the Magistrate it is open to the Court to quash the
proceedings".
25. In PRATIBHA RANI v. SURAJ KUMAR AND ANOTHER7 the Supreme Curt observed "It
is well settled by a long course of decisions of this Court that of the purpose
of exercising its power under section 482 Cr.P.C. to quash a FIR a complaint the
High Court would have to proceed entirely on the basis of the allegations made
in the complaint or the documents accompanying the same per se. It has no
jurisdiction to examine the correctness or otherwise allegations".
26. A Full Bench of this Court in GIRISH SARWATE v. STATE OF A.P.8
following the decisions of the Supreme Court in R.P. Kapur's case and
Bhajanlals's case held that the inherent powers to the High Court are available
to make such orders as may be necessary to give effect to any order under the
Code or to prevent abuse of the process of any Court or otherwise to secure the
ends of justice and such inherent power is not limited by any provision in the
Criminal Procedure Code.
27. The Supreme Court in CHAND DHAWAN (SMIT) v. JAWAHAR LAL AND OTHERS9
reiterated the law in the following terms:
'This Court has in various decisions examined the scope of the power under
Section 482 Cr.P.C. and has reiterated the principle that the High Court can
exercise its inherent jurisdiction of quashing a criminal proceeding only when
the allegations made in the complaint do not constitute an offence or that the
exercise of the power is necessary either to prevent the abuse of the process of
the court of otherwise to secure the ends of justice. No flexible guidelines or
rigid formulae can be set out and it depends upon the facts and circumstances of
each case where in such power should be exercised. When the allegations in the
complaint prima facie constitute e the offence against any or all of the
respondents in the absence of materials on record to show that the continuance
of the proceeding should be an abuse of the process of the court or would defeat
the ends of justice, the High Court would not be justified in quashing the
complaint."
28. When the factual position of the case at hand is considered in the light
of the above principles of law highlighted, the inevitable conclusion is that
the learned single Judge is not justified in quashing the FIR and the
proceedings before the Magistrate after the charge sheet is filed. In the
instant case, whether we take the earliest information report or the later, in
our opinion, prima facie, both the reports disclose commission of offence and
does not disclose abuse of process of law, and, as such, it is not possible or
permissible in the light of the law laid down by the apex court to quash the
first information report even though manipulation did take place in registering
the crime. On the ground of manipulation in registering the crime the criminal
law set in motion cannot be set at naught particularly when the both the FIRs
discloses commission of an offence. As held by the Supreme Court power cannot be
exercised to stifle a legitimate prosecution.
The learned single Judge in exercise of the extraordinary jurisdiction
under Article 226 of the Constitution of India as also under the inherent powers
under Section 482 of the Code of Criminal Procedure has exceeded the
jurisdiction in quashing the first information report as also the criminal
proceedings initiated before the jurisdictional magistrate. When both the FIRs
prima facie disclose an offence under section 354 IPC the High Court is not
empowered to quash the same and the criminal proceedings. Therefore, the learned
single Judge is not justified in quashing the FIR and the criminal proceedings.
29. The Supreme Court in T.T. ANTONY v. STATE OF KERALA10 dealing with the
aspect whether a second FIR can be registered in respect of the same cognizable
offence or same occurrence giving rise to one or more cognizable offences, it
was held:
"18. An information given under sub-section (1) of Section 154 Cr.PC. is
commonly known as first information report (FIR) though this term is not used in
the Code. It is a very important document. And as its nickname suggests it is
the earliest and the first information of a cognizable offence recorded by an
officer in charge of a police station. It sets the criminal law in motion and
marks the commencement of the investigation which ends up with the formation of
opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a
police report under section 173 CrPC. It is quite possible and it happens not
infrequently that more information than one are given to a police officer in
charge of a police station in respect of the same incident involving one or more
than one cognizable offences. In such a case he need not enter every one of
them in the station house diary and this is implied in Section 154 CrPC. Apart
from a vague information by a phone call or a cryptic telegram, the information
first entered in the station house diary, kept for this purpose, by a police
officer in charge of a police station is the first information report -FIR
postulated by Section 154 Cr.P.C. All other informations made orally or in
writing after the commencement of the investigation into the cognizable offence
disclosed from the facts mentioned in the first information report and entered
in the station house diary by the police officer or such other cognizable
offences as may come to his notice during the investigation, will be statements
falling under Section 162 Cr.P.C. No such information/statement can properly be
treated as an FIR and entered in the station house diary again, as it would in
effect be a second FIR and the same cannot be in conformity with eh scheme of
Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307
or 326 IPC and the investigating agency learns during the investigation or
receives fresh information that the victim died, no fresh FIR under section 302
IPC need be registered which will be irregular; in such a case alteration of the
provision of law in the first FIR is the proper course to adopt.
19. The Scheme of Cr.P.C. 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
absis of the evidence collected, he has to form an opinion under Section 169 or
170, as th 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 of more further
reports; this the import of sub-section (8) of Section 173 CrPC. "
Referring to Section 173(8) of CrPC empowering the police to make
further investigation and filing of further reports, it was held:
" 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 Ram
Lal Narang v. State (Delhi Admn.)11 it was, however, observed that it would be
appropriate to consider further investigation with the permission of the Court.
However, the sweeping power of investigation does not want subjecting a citizen
each time to fresh investigation by the police in respect of the me incident,
giving rise to one or moir 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."
30. In the above case, the Supreme Court held that there can be no second
FIR in respect of the same offence and only information about commission of
cognizable offence which is first entered in station house diary by officer in
charge of the police station can be regarded as FIR under section 154 CrPC and
quashed the second FIR. In the instant case, however, though the first
information report lodged by the de facto complainant has been registered as
Crime No.94 of 2010 in the on line, but the de facto complainant again lodged
another improved complaint and the same has also been registered as Crime No.94
of 2010 manually, but actually, the SHO forwarded the later complaint only in
the printed proforma to the Magistrate together with the later complaint lodged
by the de facto complainant which was taken on file by the Court and charge
sheet has been filed pursuant thereto and numbered as C.C.No.240 of 2010.
31. Antony's case is also distinguishable with the facts on hand. In the
above case, already the first information report was registered. The case
relates to an incident of police filing in which five persons died. Initially
two crimes were registered. A commission of enquiry was appointed in regard to
the incident and on the basis of the findings of the commission of inquiry
another crime was registered by the police. The Supreme Court held that in
respect of the same offence no second FIR can be registered. In the instant
case, though the first FIR was registered the same was not forwarded to the
Magistrate together with the earliest complaint lodged by the de facto
complainant. In our opinion, Antony's case has application only to the extent
that no second FIR in respect of the same offence can be registered.
32. Now the question arises is how to rectify the mistake or manipulation
occurred in registering the crime and what will happen to the earliest first
information report lodged by the de facto complainant. Question also arises what
will happen to the charge sheet/final report which was already taken on file by
the Court filed pursuant to the second information report which was transmitted
to the jurisdictional magistrate along with the complaint lodged by the de facto
complainant. No doubt, in law, it is the earliest first information report that
should be taken into consideration. Admittedly, though the first complaint
lodged by the de facto complainant has been registered as FIR by the SHO neither
the copy of the FIR registered on online nor the complaint has been forwarded to
the jurisdictional Magistrate, but it is only the FIR registered manually on the
basis of the later complaint lodged by the complainant together with the later
complaint has been forwarded to the jurisdictional magistrate and on the basis
of the same a charge sheet has been filed. In such circumstances and since we
are inclined to set aside the order of the learned single Judge on ground that
both the complaints discloses commission of an offence and keeping in view the
law laid down by the Apex court, in our opinion, the later First Information
Report will stand.
33. The above view of ours is justified for yet another reason. Any
direction by this Court now to substitute the later FIR with that of the
earliest FIR by quashing the later FIR at this stage would lead to complication
and is not permissible even under the scheme of criminal investigation under the
Code of Criminal Procedure as the charge sheet had already been taken on file by
the Magistrate. It would amount to setting at naught the criminal law which had
already been set in motion and we have to again set the criminal law into motion
by registering the earliest FIR and forward it again to the jurisdictional
Magistrate and again filing a charge sheet on the basis of the substituted first
information report. All these would not be possible at this stage as the same
would vitiate the proceedings being contrary to the procedure contemplated
under the Code. Further, as already held, prima facie, whether it is the FIR
lodged at the earliest point of time or the later one, both discloses commission
of offence, whether disclosure of such offence is against all the accused or
some is a matter to be established at the time of appreciating the evidence that
may be adduced by the prosecution before the Court. In our view, since already
the later first information report has been registered and forwarded to the
Court and charge sheet had already been filed, the earliest first information
report cannot now be substituted with the present one.
34. The Supreme Court in T.T. ANTONY v. STATE OF KERALA while quashing the
second FIR however held that the same does not preclude the investigating agency
from seeking leave of the Court for making further investigations and filing a
further report or reports under section 173(8) CrPC before the competent
Magistrate after seeking leave of the Court.
35. In this connection, we may refer to Clause (8) of Section 173 of the
Code of Criminal Procedure which provides for further investigation in respect
of an offence after a report under sub-section(3) has been forwarded to the
Magistrate. Section 173 provides for submission of report by police officer on
completion of investigation. Sub-section (2) provides that as soon as the
investigation is completed the officer in charge of the police station shall
forward to magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government. Sub-section
(8) which is relevant for our consideration reads thus:
Nothing in this section shall be deemed to preclude further investigation in
respect of an offence after a report under sub-section (2) has been forwarded to
the Magistrate and, where upon such investigation, the officer-in-charge of the
police station obtains further evidence, oral or documentary, he shall forward
to the Magistrate, a further report or reports regarding such evidence in the
form prescribed, and the provisions of sub-section (2) to (6) shall, as far as
may be apply in relation to such report or reports as they apply in relation a
report forwarded under sub-section (2).
Therefore, since under sub-section (8) the Officer-in-charge is
empowered to forward a further report, he can submit an additional report and
the Magistrate keeping in view the circumstances of the case has to take the
same also on file and to be proceeded with.
36. Therefore, the prosecution would be at liberty to file a further report
under section 173(8) CrPC bringing out the reasons for not registering the
earliest report, if necessary, by making further investigation as required under
section 156 CrPC, with the permission of the Court.
At the same time, it would
be open to the petitioners to contend that the later FIR should be taken into
account so far as it is consistent and corroborative with the earliest FIR and
only that part of the second FIR alone should constitute as FIR.
The petitioners
are also given the liberty to produce the same before the Court in support of
their case. These are the aspects which have to be gone into by the trial court
while appreciating the entire material evidence that may be placed on record.
37. We have earlier upheld the finding recorded by the leaned Single Judge
that there was manipulation of the FIR while registering the crime.
Therefore,
the matter need to be examined on administrative side by the Superintendent of
Police constituting an enquiring authority to find out where the lapse had
occurred and who are the persons or person responsible for the same.
What
disciplinary action is required to be taken against the erring officers is
within the domain of the administrative authority.
This Court, in exercise of
the powers under Article 226 of the Constitution of India or the inherent powers
under Section 482 of Code of Criminal Procedure cannot, direct that a particular
action should be taken or an officer be placed under suspension in a matter of
this nature.
Therefore, the order of the learned single Judge to the said
extent is also liable to be set aside.
38. For the reasons aforesaid, the appeals are partly allowed in the following
terms:
1. The order of the learned single Judge is hereby set aside.
2. The proceedings in C.C.No.254 of 2010 on the file of the Judicial Magistrate
of First Class, Banaganapalli initiated pursuant to the charge sheet filed in
Cr.No.94 of 2010 of Owk Police Station be restored back to the file of the
Magistrate and the same shall be proceeded with by the Magistrate in accordance
with law.
3. The petitioners are at liberty to take all such pleas as are available to
them in law and in the light of the observations made above.
4. The Superintendent of Police, Kurnool shall cause enquiry as to the
manipulation occurred while registering the crime by the Officer in charge of
the Police Station and initiate appropriate disciplinary proceedings as well as
criminal proceedings on the basis of the findings of enquiry against the officer
or officers responsible for the manipulation and submit compliance report to
this Court.
PINAKI CHANDRA GHOSE, CJ
VILAS V. AFZULPURKAR, J
4th January, 2013.
