death penalty converted in to life sentence -“Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the “rarest of rare cases” as indicated in, Bachan Singh’s case, (AIR 1980 SC 898), in a way every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.” - Thus, Section 31(1) of the Cr. P.C. empowers the Court to inflict sentences of imprisonment for more than one offence to run either consecutively or concurrently. In Kamalanantha & Ors. vs. State of T.N. [(2005) 5 SCC 194], this Court has held that the term “imprisonment” in Section 31 of the Cr. P.C. includes the sentence for imprisonment for life. Considering the facts of this case, we are of the opinion that the appellant is liable under Section 302, IPC for imprisonment for life for each of three offences of murder under Section 300, IPC and the imprisonments for life should not run concurrently but consecutively and such punishment of consecutive sentence of imprisonment for the triple murder committed by the appellant will serve the interest of justice. - but convert the sentence from death to sentence for rigorous imprisonment for life for each of the three offences of murder and direct that the sentences of imprisonment for life for the three offences will run consecutively and not concurrently.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 94-95 of 2011
Sanaullah Khan                             …… Appellant
Versus
State of Bihar                                               …..
Respondent
               
J U D G M E N T
A. K. PATNAIK, J.
This  is  an  appeal  against  the  judgment  dated
16.12.2009 of the Patna High Court in Death Reference
Case No. 1 of 2007 and Criminal Appeal (DB) No. 379 of
2007.
FACTS:
2. The  facts  very  briefly  are  that  a  fardbeyan was
lodged on 17.12.2002 by one Sanju Kumar (hereinafter
referred to as Informant), resident of Village Mathura, P.S.Page 2
Bidupur, District Vaishali.  In the fardbeyan, it was stated:
Father  of  the  informant,  namely  Ravindra  Prasad,  was
running a tea stall near the Eastern gate of the GPO.  For
the tea stall he required about 25 Litres of milk everyday
and this milk was being supplied by Sanaullah Khan, the
appellant  herein,  for  about  a  month.   Sanaullah  Khan
started mixing water with the milk and the customers of
the tea stall started making complaints about the quality
of tea.  On 02.12.2002 at about 2.00 p.m. Sanaullah Khan
along with Md. Hamid and Arvind came to the tea stall and
demanded  the  dues  for  the  supply  of  milk.   After
calculation it was found that the dues amounted to Rs.
1,000/- and Ravindra Prasad gave Sanauallah Khan Rs.
500/- and told him that the rest of the amount will be paid
later.  Ravindra Prasad, however, informed Sanaullah Khan
that the milk supplied by him was not up to the mark and
therefore he will no longer purchase milk from his Khatal.
Sanaullah Khan got annoyed and told him that he will not
allow him to run the tea stall.  Ravindra Prasad retorted
that he had seen many persons like him at his tea stall.
Sanaullah  Khan  said  that  he  will  have  to  face  serious
2Page 3
consequences and that he will teach him a lesson within
two to four days.  Thereafter, Sanaullah Khan, Hamid and
Arvind went away.  On 16.12.2002 at about 8.00 p.m.
Arvind, who was working with Sanaullah Khan came and
told Ravindra Prasad that his master was calling him for
some urgent work and Ravindra Prasad went along with
Arvind and did not return for an hour.  Arvind again came
and told his brother Sunny Kumar, who was in the tea
stall, that his master was calling him and that Ravindra
Prasad was in the Khatal.  Sunny Kumar also accompanied
Arvind.  Ravindra Prasad and Sunny Kumar, however, did
not return till the next morning.  The Informant became
suspicious and started searching for his father and his
brother.  He went to the Khatal of the appellant, but found
it to be closed.  He suspected that the appellant, Hamid
and Arvind had kidnapped his father and younger brother.
3. The fardbeyan given by the Informant was registered
as  FIR No.451 of 2002 at Kotwali, P.S. for the offence of
kidnapping under Section 364 read with Section 34 of the
Indian  Penal  Code,  1860,  (for  short  ‘the  IPC’).  When
investigation was done by the police, three dead bodies
3Page 4
were found concealed in husk in a room on the eastern
verandah  of  Pearl  Cinema  and  the  dead  bodies  were
seized and a seizure list was prepared in which Parimal
Kumar and Baleshwar Ram signed as witnesses.  Two of
the dead bodies were identified by the informant as those
of Ravindra Prasad and Sunny Kumar.  Inquest reports and
postmortem reports of the dead bodies were prepared.
Later the third body was identified to be that of Arvind by
Ramanand  Ram,  father  of  Arvind.   The  appellant  was
arrested and pursuant to the confession of the appellant,
the shoes, sandal and gamchha of the three deceased
persons,  a rope,  a small plastic bag and a knife were
recovered  from  the  garbage  situated  in  north-east  of
Khatal and were seized and Parimal Kumar and Baleshwar
Ram signed the seizure list.  Offences under Sections 302,
120B and 201 IPC were added and a charge-sheet was
filed against the appellant and Hamid and the case was
committed to the Court of Sessions.
4. At  the  trial,  altogether  eight  witnesses  were
examined.    The  Trial  Court  held  that  the  chain  of
circumstances  is  complete  and  does  not  leave  any
4Page 5
reasonable  ground  for  conclusion  consistent  with  the
innocence of the appellant and it goes to show that in all
human  probabilities,  the  offences  must  have  been
committed by the appellant.   The trial court,  however,
acquitted Hamid of the charges.  After hearing on the
question of sentence, the trial court took the view that the
appellant should be hanged by the neck till death as he
had  killed  three  helpless  persons  brutally  after
premeditation and if he is allowed to continue to live in the
present society, he will be a threat to his co-human beings
and this was one of those rarest of rare cases in which the
appellant deserves the capital punishment of death.  The
trial court accordingly referred the sentence of death to
the High Court.
5. The appellant also filed a criminal appeal against the
judgment of the trial court.  On 03.07.2006, the High Court
directed recording of additional evidence on two points in
exercise of its powers under Section 391 of the Criminal
Procedure Code, 1973 (for short ‘the Cr.P.C.’).  Pursuant to
the direction of the High Court the confessional statement
of the appellant was marked as an exhibit through the
5Page 6
investigating  officer  (PW-8)  after  his  recall  by  the  trial
court and the knife which was seized and listed as item 10
in  the  seizure  list  was  also  marked  as  an  exhibit.
Thereafter, the High Court heard the appeal and held that
the prosecution has been able to bring home the guilt of
the appellant with regard to the murder of the 3 deceased
persons by exhibiting four circumstances and these are (i)
that  the  appellant  was  selling  milk  to  the  deceased
Ravindra Prasad and Ravindra Prasad stopped buying the
milk (ii) the appellant summoned the deceased Ravindra
Prasad and deceased Sunny Kumar through the deceased
Arvind who was working with the appellant (iii) the dead
bodies  of  the  three  deceased  persons  were  recovered
from the room belonging to the appellant and (iv) the
weapons used in the murder of three deceased persons
were  recovered  pursuant  to  the  confession  of  the
appellant.   The  High  Court  also  confirmed  the  death
sentence of the appellant saying that the tests laid down
by this Court in Macchhi Singh vs. State of Punjab [(1983)
3 SCC 470] regarding the cases in which death penalty
should  be  imposed  were  present  in  the  facts  and
6Page 7
circumstances  of  the  present  case.   Aggrieved  by  the
judgment of the High Court, the appellant has filed this
appeal.
CONTENTIONS OF THE LEARNED COUNSEL FOR THE
PARTIES:
6. Mr.  Amarendra  Sharan,  learned  senior  counsel
appearing for the appellant, submitted that there is no eye
witness to the murder of the three deceased persons and
the finding of the High Court that the prosecution has
been able to establish the guilt of the appellant beyond
reasonable doubt are based on 4 circumstances is not
correct.
7. Mr. Sharan relied on the evidence of PW-3 to the
effect that Arvind had a dairy (khatal) at Old Bakri Bazar
and also on the evidence of PW-4 that the appellant never
had  any  business  of  milk  but  had  a  business  of  bakri
(goat).  He submitted that the first circumstance which
was  the  motive  for  the  appellant  to  kill  the  deceased
Ravindra Prasad and Sunny Kumar is itself not established
in this case.
7Page 8
8. Mr.  Sharan  submitted  that  there  is  absolutely  no
evidence to establish the second circumstance that the
appellant  summoned  the  deceased  persons  Ravindra
Prasad and Sunny Kumar.  He submitted that the trial
court and the High Court has relied on the evidence of PW-
6  to  hold  that  the  appellant  summoned  the  deceased
persons Ravindra Prasad and Sunny Kumar through his
servant Arvind but PW-6 was not present at the tea stall.
He submitted that the evidence of PW-7 would show that
PW-6  was  in  the  house  of  PW-7  on  16.12.2002  and
remained there till the morning of 17.12.2002 and thus
PW-6 was not present at the tea stall on 16.12.2002 when
Arvind is alleged to have told Ravindra Prasad and Sunny
Kumar that they have been summoned by the appellant.
9. Mr.  Sharan  next  submitted  that  the  third
circumstance that dead bodies were recovered from the
room belonging to the appellant is also not proved in as
much  as PW-7 has said in  his evidence that the dead
bodies were in fact recovered in front of the Pearl Cinema.
He submitted that the two seizure witnesses PW-1 and
PW-2 have clearly said that recovery of the dead bodies
8Page 9
and the weapon with which the offence was committed
and other incriminating materials were not made in their
presence.  He argued that Rajender Tiwari, the officer who
made the recoveries has also not been examined.  He
submitted that the recoveries were made from the pile of
the garbage and not from the drain by the side of Sona
Medical Hall as is alleged to have been  stated by the
appellant in his confession.  He submitted that, therefore,
the fourth circumstance that the incriminating materials
were  recovered  pursuant  to  the  confession  of  the
appellant is also not established.
10. Mr. Sharan relied on Sharad Birdhichand Sarda vs.
State of Maharashtra [(1984) 4 SCC 116] in which this
Court has laid down the tests to be satisfied before the
court  convicts  an  accused  on  the  basis  of  only
circumstantial evidence.  He argued that in this case these
tests are not satisfied and therefore the conviction of the
appellant by the trial court as maintained by the High
Court should be set aside.  He also cited the decision of
this  Court  in  Javed  Masood  and  Another vs.  State  of
Rajasthan [(2010) 3 SCC 538] to argue that the evidence
9Page 10
of prosecution witnesses was binding on the prosecution.
He submitted that the evidence of PW3, PW4 and PW7
relied upon by the appellant to establish his innocence,
therefore, is binding on the prosecution.
11. Mr. Samir Ali Khan, learned counsel appearing for
the State, on the other hand, submitted that the evidence
of  PW-6  is  consistent  and  if  the  evidence  of  PW-6  is
considered along with the recovery of the dead bodies
from the room belonging to the appellant as well as the
recovery of the weapons and other incriminating materials
pursuant to the confessional statement of the appellant
marked Ex.1, the Court will arrive at the only conclusion
that it is the appellant who has committed the murder of
three deceased persons.  He submitted that though the
appellant retracted his confession before the trial court
when his statement under Section 313 of the Cr.P.C. was
recorded,  the  appellant  has  not  led  any  evidence  to
establish his innocence.  He submitted that the trial court
and the High Court, therefore, have rightly held that the
prosecution  has  been  able  to  prove  the  guilt  of  the
appellant beyond reasonable doubt.
10Page 11
FINDINGS OF THE COURT:
12. The evidence of PW-6 on which both the trial court
and  the  High  Court  have  relied  on  is  clear  that  on
16.12.2002 at about 8.00 p.m. when he was present at the
tea stall, Arvind, servant of the appellant came and called
Ravindra Prasad saying that the appellant wanted to talk
to him on certain issues and that Ravindra Prasad left with
Arvind.  PW-6 has also stated in his evidence that after
about  an  hour  Arvind  came  again  and  told  that  the
appellant was calling Sunny also and Sunny went along
with Arvind and thereafter PW-6 closed the shop and went
to his house.  No suggestion has also been made to PW-6
in his cross-examination by the defence that PW-6 was not
present  at  the  tea  stall  on  16.12.2002.   Mr.  Sharan,
however, referred to the evidence of PW-7 that PW-6 has
come to his house on 16.12.2002 and stayed at his house
at Patna itself in the night and left in the morning but PW-
7 has not stated the time when PW-6 had come to his
house on 16.12.2002.  Hence, the evidence of PW-7 does
not contradict the evidence of PW-6 that he was at the tea
stall  at  8.00  p.m.  on  16.12.2002  when  Arvind  told
11Page 12
Ravindra Prasad and Sunny Kumar that they were being
called by the appellant.
13. There is also evidence to show that the dead bodies
of  Ravindra  Prasad,  Sunny  Kumar  and  Arvind  were
recovered from the Khatal of the appellant.  Though, the
seizure witnesses PW-1 and PW-2 stated that nothing was
seized in their presence, PW-6 has stated that when the
Khatal (cattle shed) of the appellant was opened, he saw
some splashes of blood  and the dead bodies were found
in another room and these dead bodies were of Ravindra
Prasad, Sunny Kumar and Arvind.  He has also stated that
the  inquest  reports  of  all  the  three  dead  bodies  were
prepared at the place of occurrence itself and he put his
signature on it and all the three signatures are his and
these have been marked as Ex.1/5, 1/6 and 1/7.  In cross
examination  by  the  defence,  PW-6  has  denied  the
suggestion that the dead bodies had not been recovered
in  his  presence  and  that the  inquest  reports  were  not
prepared in  his presence and that he had not put his
signatures on the inquest reports.
12Page 13
14. Mr. Sharan relied on the evidence of PW-7 to submit
that the three dead bodies were not recovered from the
Khatal but we find that PW-7 has also stated that the three
dead  bodies  were  recovered  from  the  room  of  Pearl
Cinema where the Khatals of the appellant were situated.
PW-7  has,  however,  admitted  in  cross-examination  on
behalf of the defence that he had not seen with his own
eyes  as  to  from  which  place  the  dead  bodies  were
recovered.  Thus the evidence of PW-7 may not establish
the place from which the dead bodies were recovered but
the evidence of PW-6 clearly proves that the bodies were
recovered from a room in the verandah of Pearl Cinema,
which  was  in  occupation  of  the  appellant  and  this
evidence  of  PW-6  has  not  been  contradicted  by  the
evidence of PW-7.
15. PW-8, the I.O. who inspected the place of occurrence
has stated in his deposition that Pearl Cinema is situated
to the east of the tea stall in Budh Marg and was closed
for a long period and there is a verandah to the east of the
cinema hall which is divided into many rooms and the
rooms  situated  to  the  north  is  in  possession  of  the
13Page 14
appellant.  He has further stated in his evidence that in
the western portion of the floor of this room, blood was
found in huge quantity which had already clotted and the
stains of blood were found on the western wall also.  PW-8
has further stated that to the north of this room and near
the door there is a vacant place which is fitted with the
grill gate and to the north of this place there is another
room in which there is heap of straw and the three dead
bodies were found concealed in this very heap of husk
which were recovered and the husk was found sticking to
the injuries on the dead bodies of the deceased persons.
PW-8 has further stated that the three dead bodies were
recovered from the place of occurrence itself.  He has also
stated that Rajender Tiwari, the SI of Police prepared the
inquest reports of all the three dead bodies and he put his
signatures on all the three inquest reports which have
been marked as Ex.5, 5/1 and 5/2 respectively.
16. PW-8 has also stated in his evidence that in course of
investigation, after the appellant had surrendered in court,
he  took  him  on  police  remand  and  in  course  of
investigation  he  gave  his  confessional  statement,  and
14Page 15
pursuant to information the appellant divulged, he seized
two pair of blood stained plastic shoes, a blood stained
white  gamcha  (towel  of  Indian  type),  a  blood  stained
chequerred  gamcha,  a  plastic  rope  of  green  colour,  a
blood stained piece of plastic, a blood stained old sack, a
small sack of blood, a blood stained green small plastic
sack, a blood stained small container made of plastic, a
knife of 16 inches used for slaughtering goat.  PW-8 has
also stated that a seizure list of all these articles which
were recovered were prepared by Rajender Tiwari and he
had identified the writing and signature of Rajender Tiwari
and the seizure list is marked as Ex.6/1.  Section 27 of the
Indian Evidence Act, 1872, states that when any fact is
deposed to as discovered in consequence of information
received from a person accused of any offence, in the
custody of a police officer, so much of such information,
whether  it  amounts  to  a  confession  or  not,  as  relates
distinctly to the fact thereby discovered, may be proved.
Hence,  the  information  received  from  the  appellant
pursuant to which the aforesaid incriminating materials
15Page 16
were recovered is not only admissible but also has been
proved.
17. Thus, three circumstances have been established by
the prosecution.  The first circumstance established by the
prosecution  is  that  Arvind  came  to  the  tea  stall  on
16.12.2002 at about 8.00 p.m. and told Ravindra Prasad
that he was being called by the appellant and Ravindra
Prasad went with Arvind and within an hour thereafter
Arvind again came to the tea stall and told Sunny Kumar
that  he  was  being  called  by  the  appellant  and  Sunny
Kumar went along with Arvind.  The second circumstance
that has been established by the prosecution is that on
17.12.2002 the dead bodies of Ravindra Prasad, Sunny
Kumar  and  Arvind  were  recovered  from  a  room  in
occupation  of  the  appellant  in  the  verandah  of  Pearl
Cinema.  The  third  circumstance  which  has  been
established  by  the  prosecution  is  that  pursuant  to  the
information divulged by the appellant the incriminating
materials were recovered by the I.O.  These three chain of
circumstances establish beyond reasonable doubt that it
16Page 17
was the appellant who had eliminated the three deceased
persons.
18.  In  Sharad  Birdhichand  Sarda vs.  State  of
Maharashtra (supra), cited by Mr. Sharan, the following 5
golden principles were laid down for a proof of guilt on the
basis of circumstantial evidence (i) the circumstance from
which the conclusion of the guilt is to be drawn should be
fully established; (ii) the facts so established should be
consistent  only with  the hypothesis of  the guilt of the
accused; (iii) the circumstances should be of a conclusive
nature  and  tendency;  (iv)  they  should  exclude  every
possible hypothesis except the one to be proved, and (v)
there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.  Considering the chain of three circumstances
which have been fully established by the prosecution, the
5 golden principles laid down in Sharad Birdhichand Sarda
vs. State of Maharashtra (supra) apply in this case and the
only hypothesis that we can conclude from the chain of
17Page 18
three circumstances is that it is the appellant who has
committed the murder of the three deceased persons.
19. In Javed Masood and Another vs. State of Rajasthan
(supra) cited by Mr. Sharan, this Court relying on its earlier
decision in Mukhtiar Ahmed Ansari vs. State [(2005) 5 SCC
258] has held that it was open to the defence to rely on
the evidence led by the prosecution.  In this case, we have
found that the evidence of PW-7 does not contradict the
evidence of PW-6 and does not support the defence.  It,
however, appears from the evidence of PW-3 that it was
Arvind who had a Khatal at Old Bakri Bazar.  We have
perused the evidence of PW-3 and we do not find that PW-
3 has stated that the appellant did not have a Khatal on
the verandah of the Pearl Cinema.  Of course, PW4 has
stated that the appellant runs business of bakri (sheep
goat) and never ran milk business but in the evidence of
PW-4  there  is  nothing  to  show  that  the  room  on  the
verandah of Pearl Cinema was not in the occupation of the
appellant.  At best the defence can rely on PW-4 to argue
that  the  appellant  did  not  carry  on  milk  business  and
therefore the motive for committing the offence did not
18Page 19
exist.  The evidence of PW4 may thus create some doubt
with regard to the motive of the appellant to kill Ravindra
Prasad and Sunny  Kumar.   Where  other  circumstances
lead  to  the  only  hypothesis  that  the  accused  has
committed  the  offence,  the  Court  cannot  acquit  the
accused of the  offence merely because the motive for
committing the offence has not been established in the
case.  In Ujjagar Singh v. State of Punjab [(2007) 13 SCC
90, this Court has held:
“It is true that in a case relating to
circumstantial evidence motive does
assume great importance but to say
that  the  absence  of  motive  would
dislodge the entire prosecution story
is perhaps giving this one factor an
importance which is not due and (to
use the cliche) the motive is in the
mind of the accused and can seldom
be  fathomed  with  any  degree  of
accuracy”.
SENTENCE:
20.  On the question of sentence, the trial court has
recorded special reasons under Section 354(3) Cr.P.C. for
awarding death sentence to the appellant.  The trial court
has held that the appellant has killed Ravindra Prasad and
19Page 20
Sunny  Kumar  on  an  issue  of  petty  amount  and  the
appellant has also not spared his servant, Arvind.  The trial
court has also found from the post mortem reports of the
three  deceased  persons  that  they  have  been  brutally
murdered after premeditation.  The trial court has further
held that if the appellant is allowed to continue to live in
society, he will be a great threat to his co-human beings.
For the aforesaid reasons, the trial court took the view
that the appellant should be awarded the death sentence.
21.  While  confirming  the  death  sentence,  the  High
Court has held in the impugned judgment that the present
case clearly falls under the yardstick laid down in Machhi
Singh & Ors. v. State of Punjab [AIR 1983 SC 957].  The
reasons, which weighed with the High Court in confirming
the death sentence, are that the appellant did not hesitate
to  take  away  three  lives  for  petty  monetary  gain;  the
tender age of Sunny was of no concern to him; either
Ravindra or Sunny had to undergo the trauma of watching
the father or the son being killed first in front of the other
and their hands and feet were tied and a butchering knife
was used to cause multiple murders and the nature of the
20Page 21
assault upon  the deceased Arvind to  do  away with  all
evidence whatsoever was dastardly.
22.  We have, however, noticed that the motive for the
appellant to commit the murder of three persons has not
been established in this case.  Hence, one of the reasons
given  by  the  trial  court  and  the  High  Court  that  the
murders were committed for petty monetary gain is not
substantiated by evidence.  We have also found that there
is no eyewitness to the manner in which the appellant
committed the murder of three persons and the culpability
of the appellant has been established only by a chain of
three circumstances established by the prosecution.  The
finding of the High Court, therefore, that either Ravindra
or  Sunny  had  to  undergo  the  trauma  of  watching  the
father or the son being killed first in front of the other is a
pure surmise.  Similarly, the finding of the High Court that
the hands and feet were tied and a butchering knife was
used to cause multiple murders is an inference drawn by
the High Court from the post mortem report.  What exactly
happened leading to the murder of three persons by the
appellant is not known, but what appears from the  post
21Page 22
mortem reports is that the three deceased persons were
brutally killed by the appellant.  It has, however, been held
by this Court in Subhash Ramkumar Bind @ Vakil & Anr. v.
State  of  Maharashtra [AIR  2003  SC  269]  that  brutality
would be a relevant factor but how the same did take
place  is  also  a  relevant  and  necessary  material  to  be
considered  while  deciding  whether  to  award  life
imprisonment  or  death  for  the  offence  of  murder.
Moreover, in Panchhi & Ors. v. State of U.P. [AIR 1998 SC
2726] a three-Judge Bench of this Court has held:
“Brutality of the manner in which a murder
was perpetrated may be a ground but not the
sole criterion for judging whether the case is
one of the “rarest of rare cases” as indicated
in,  Bachan Singh’s case, (AIR 1980 SC 898),
in  a  way  every  murder  is  brutal,  and  the
difference between one from the other may
be on account of mitigating or aggravating
features surrounding the murder.”
23.     The  trial  court,  however,  has  held  that  as  the
appellant  has  eliminated  the  three  deceased,  if  the
appellant is allowed to continue to live in society, he will
be a great threat to his co-human beings.  This reason for
awarding the extreme penalty of death is based on an
22Page 23
apprehension  and  may  not  be  enough  to  impose  the
extreme  penalty  of  death.   As  has  been  held  by  the
majority of four Judges in Bachan Singh’s case (supra), the
extreme penalty of death can be inflicted only in gravest
cases of extreme culpability and in making choice of the
sentence, in addition to the circumstances of the offence,
due  regard  must  be  paid  to  the  circumstances  of  the
offender  also.   In  the  present  case,  we  do  not  find
evidence  to  establish  the  gravest  case  of  extreme
culpability  of  the  appellant  and  we  do  not  also  have
evidence to establish the circumstances of the appellant.
24.   We have, however, sufficient evidence to establish
the  culpability  of  the  appellant  for  three  offences  of
murder as defined in Section 300, IPC, and for each of the
three offences of murder,  the appellant is liable under
Section  302,  IPC  for  imprisonment  for  life  if  not  the
extreme penalty of death.  Section 31(1) of the Cr.P.C.
provides that when a person is convicted at one trial of
two  or  more  offences,  the  Court  may,  subject  to  the
provisions  of  Section  71  of  the  Indian  Penal  Code,
sentence  him  for  such  offences,  to  the  several
23Page 24
punishments  prescribed  therefor  which  such  Court  is
competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of
the other in such order as the Court may direct, unless the
Court  directs  that  such  punishments  shall  run
concurrently.   Thus,  Section  31(1)  of  the  Cr.  P.C.
empowers the Court to inflict sentences of imprisonment
for more than one offence to run either consecutively or
concurrently.  In  Kamalanantha & Ors. vs.  State of T.N.
[(2005) 5 SCC 194], this Court has held that the term
“imprisonment” in Section 31 of the Cr. P.C. includes the
sentence for imprisonment for life.  Considering the facts
of this case, we are of the opinion that the appellant is
liable under Section 302, IPC for imprisonment for life for
each of three offences of murder under Section 300, IPC
and the imprisonments for life should not run concurrently
but  consecutively  and  such  punishment  of  consecutive
sentence of imprisonment for the triple murder committed
by the appellant will serve the interest of justice.  
25.  In the result, we maintain the conviction of the
appellant for three offences of murder under section 302,
24Page 25
IPC, but convert the sentence from death to sentence for
rigorous  imprisonment  for  life  for  each  of  the  three
offences  of  murder  and  direct  that  the  sentences  of
imprisonment  for  life  for  the  three  offences  will  run
consecutively and not concurrently.  Thus, the appeals are
allowed only on the question of sentence, and dismissed
as regards conviction. 
.……………………….J.
                                                           (A. K. Patnaik)
………………………..J.
(Madan B. Lokur)
New Delhi,
February 15, 2013.  
25

Section 8 of the Indian Evidence Act, 1872, - “…..Conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after the commission of the offence as envisaged under Section 8 of the Evidence Act….”- The general good behaviour of the appellant and the fact that he had no bad habit have no nexus with the offence alleged against the appellant and are not relevant when other circumstances have established beyond reasonable doubt that it is the appellant and the appellant alone who has committed the murder of the deceased.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 221 of 2007
Vivek Kalra                                                         …… Appellant
Versus
State of Rajasthan                                            …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This  is  an  appeal  against  the  judgment  dated
25.10.2004 of the Rajasthan High Court, Jaipur Bench, in D.B.
Criminal Appeal No. 602 of 2002, maintaining the conviction
of the appellant under Section 302 of the Indian Penal Code,
1860,  (for  short  ‘the  IPC’)  and  the  sentence  of  life
imprisonment and fine of Rs.1,000/- for the offence. Page 2
2. The facts very briefly are that on 08.06.1997 at about
8.30 a.m., one Lal Singh, who was running a tea shop at Bypass Road, Sedariya Tiraha, lodged an FIR with Police Station
Adarsh Nagar, Ajmer.  In the FIR, he stated that at about
8.00  a.m.  on  08.06.1997  one  truck  driver  told  him  that
ahead of Shantinath Dharm Kanta, on the wall of pulia (small
bridge) one boy has been murdered and laid down and he
went there to see and found that one boy, aged about 13-14
years, was lying dead in a pool of blood and several persons
have gathered there.  The police registered a case under
Section 302, IPC, and after investigation, the police filed a
charge-sheet against the appellant under Section 302, IPC.  
3. At the trial, the prosecution did not examine any eyewitness  to  the  murder  of  the  deceased,  but  produced
circumstantial evidence to establish that the appellant had
committed the murder of the deceased and the trial court
convicted the appellant.  On appeal, the High Court held in
the impugned judgment that after the death of his father the
appellant was living with his uncle, Gurcharan Kalra, and
2Page 3
there was a fixed deposit in his name of Rs.80,000/-, but as
Gurcharan Kalra decided to utilize the fixed deposit only at
the  time  of  marriage  of  the  appellant,  in  order  to  take
revenge, the appellant purchased a dantli, took Ankit Kalra,
the son of Gurcharan Kalra, in a Scooter on the evening of
07.06.1997 to get a cassette, and committed the murder of
Ankit Kalra, left the scene of incident, reached Jaipur and got
himself  admitted  to  a  hospital  there  on  08.06.1997  for
treatment saying that he has met with an accident. 
4. Learned counsel for the appellant submitted that the
finding of the High Court in the impugned judgment on the
motive of the appellant to commit the offence is based on
the evidence of Gurcharan Kalra, PW-11,  about the fixed
deposit of Rs.80,000/- of the appellant, which the appellant
used to demand, but from this evidence the High Court could
not have come to  the conclusion  that the motive of the
appellant was to take revenge by killing the deceased.  He
next submitted that PW-5 has admitted in his evidence that
the appellant had a good behaviour and had no bad habit
3Page 4
and, therefore, it is quite probable that the appellant has not
committed the offence.  He further submitted that PW-5 has
clearly  said  that  when  he  made  the  enquiry  from  the
appellant about the deceased Ankit, he had told him that he
had been assaulted by Munna and his 2 to 4 associates and
caused injuries.  He submitted that it is quite possible that
Munna may have killed the deceased and that the appellant
had not committed the murder.  He further submitted that
the medical evidence of PW-22, Dr. B.K. Mathur, is clear that
the injury nos. 8 and 9 could not have been caused by dantli.
He submitted that since the prosecution case is that the
appellant used a dantli to cause the death of the deceased,
this  medical  evidence  creates  sufficient  doubt  on  the
prosecution case.
5. Learned counsel appearing for the State, on the other
hand, supported the impugned judgment of the High Court
by relying on the following circumstances:
(i) PW-6  has  stated  that  in  the  evening  of
07.06.1997 when his parents had gone to the
4Page 5
market and he was playing with the deceased,
the appellant came to their house and took the
deceased with him saying that they will come
back after getting a cassette, but thereafter the
deceased did not come back home.
(ii) PW-5, the father of PW-6, has corroborated the
evidence of PW-6 that at about 7.00 p.m. in the
evening  of  07.06.1997,  he  and  his  wife  had
gone to the market for shopping and when they
came back home at about 9.00 p.m., PW-6 told
them that the appellant took the deceased on a
scooter on the pretext of taking a cassette.
(iii) PW-28 has deposed that he used to work at V.K.
Video Movies, Plaza Road, and on 07.06.1997
between 8.00 p.m. and 8.30 p.m. a person by
the name of Vivek Kalra (the appellant) came to
their  shop  and  took  one  cassette  of  picture
Judwaa and deposited Rs.100/- in advance and
his name has been entered in the register of the
shop, but the cassette was never received back.
5Page 6
(iv) PW-7 is a witness to the panchnama of the dead
body of the deceased (Ext. P-6) which bears his
signatures at points A to B and he has said that
one  dantli was lying on the ground near the
pulia which had a wooden handle and was taken
possession of by the police vide memo Ext. P7,
which bears his signatures at points A to B and
he has also stated that the  dantli was bloodstained.
(v) PW-13 is a blacksmith and he has said before
the  Court  that  the  appellant  had  come  to
purchase a dantli from his shop and he agreed
to pay a price of Rs.110/- out of which he paid
advance of Rs.10/- to him and on the next day
he came to the shop and took the sharp edged
dantli and he had paid the balance of Rs. 100/-
to  him  and  the  seized  Dantli was  produced
before PW-13 as Article-1 and PW-13 identified
Article-1 as the one that was purchased by the
appellant from him.
6Page 7
(vi) PW-22, Dr. B.K. Mathur, has given his opinion
that  he  conducted  the  postmortem  on  the
deceased on 09.06.1997 at 9.30 a.m. and that
the injuries no. 1 to 7 could be caused by the
dantli.
Learned counsel for the State submitted that considering all
these circumstances established by the prosecution, there
can be no doubt that it is the appellant and the appellant
only who has committed the murder of the deceased.
6. We  have  considered  the  submissions  of  the  learned
counsel  for  the  parties  and  we  agree  with  the  learned
counsel for the appellant that from the evidence of PW-11
one could not hold that the appellant had committed the
murder of the deceased to take revenge on his uncle (PW-
11), who had not given him Rs.80,000/- kept in fixed deposit.
We  are,  however,  of  the  opinion  that  where  prosecution
relies on circumstantial evidence only, motive is a relevant
fact and can be taken into consideration under Section 8 of
the Indian Evidence Act, 1872 but where the chain of other
7Page 8
circumstances establish beyond reasonable doubt that it is
the  accused  and  accused  alone  who  has  committed  the
offence and this is one such case the Court cannot hold that
in the absence of motive of the accused being established by
the prosecution, the accused cannot be held guilty of the
offence.  In Ujjagar Singh v. State of Punjab [(2007) 13 SCC
90], this Court observed:
“It  is  true  that  in  a  case  relating  to
circumstantial evidence motive does assume
great importance but to say that the absence
of  motive  would  dislodge  the  entire
prosecution story is perhaps giving this one
factor an importance which is not due and (to
use the cliché) the motive is in the mind of
the  accused  and  can  seldom  be  fathomed
with any degree of accuracy.”
7.     In this case, the dead body of  Ankit was found on the
morning of 08.06.1997 at around 8.00 a.m. and it is clear
from the evidence of PW-5 and PW-6 that the appellant had
taken  Ankit in a scooter between 7.00 p.m. and 9.00 p.m. on
07.06.1997 on the pretext of getting a cassette.  PW-28 has
confirmed  that  between  8.00  p.m.  and  8.30  p.m.  the
appellant  had  come  to  his  cassette  shop  and  taken  the
8Page 9
cassette  of  the  film  Judwaa.   It  is  also  clear  from  the
evidence of PW-5 and PW-6 that neither the appellant nor
the deceased returned on the evening of 07.06.1997.  From
the evidence of PW-26 and PW-7, we also find that the bloodstained  dantli has  been  recovered  from  the  place  of
occurrence and the blacksmith, PW-13, has confirmed that
he had sold that particular dantli to the appellant at a price
of Rs.110/-.
8. Dr. B.K. Mathur, PW-22, has said in his evidence that
injury nos. 1 to 7 could have been caused by the dantli and
that the death of the deceased has been caused from shock
and haemorrhage with blood oozing from all the injuries.  We
find that injury nos. 1, 2, 3, 4, 5, 6 and 7 are cut wounds on
the left of the face, left of the neck, back of the neck, on the
left muscles and specula bone intestine and on the left of the
waist. The number and nature of these injuries together are
enough in the ordinary course to cause death and have been
caused by dantli purchased by the appellant.  Hence, merely
because the prosecution has not been able to prove that
injury nos. 8 and 9 have been caused by dantli, we cannot
9Page 10
hold that it is not the appellant who has caused the death of
the deceased.
9. It is true that PW-5 has stated that the appellant had a
good behaviour and had no bad habit.  Section 8 of the
Indian  Evidence  Act,  1872,  however,  provides  that  the
conduct  of  any  person  an  offence  against  whom  is  the
subject  of  any  proceeding,  is  relevant,  if  such  conduct
influences or is influenced by any fact in issue or relevant
fact,  and  whether  it  was  previous  or  subsequent  to  it.
Hence, any behaviour or conduct of the appellant would be
relevant if it had nexus with the offence under Section 302
alleged to have been committed by him.  This Court has held
in Vikramjit Singh alias Vicky v. State of Punjab  [2006 (12)
SCC 306] at page 314:
“…..Conduct of an accused must have nexus
with the crime committed.  It must form part
of the evidence as regards his conduct either
preceding, during or after the commission of
the offence as envisaged under Section 8 of
the Evidence Act….”
10Page 11
The general good behaviour of the appellant and the fact
that he had no bad habit have no nexus with the offence
alleged against the appellant and  are not  relevant  when
other  circumstances  have  established  beyond  reasonable
doubt that it is the appellant and the appellant alone who
has committed the murder of the deceased.
10.  In the result, we find no merit in the appeal and we
dismiss the same.
……...……………………….J.
                                                       (A. K. Patnaik)
……..………………………..J.
(Chandramauli Kr. Prasad)
New Delhi,
February 15, 2013.  
11

dismissal from service- De hors the above conclusion, we are satisfied that the punishment of dismissal imposed on the appellant is legally unsustainable. The Controller of Examinations and the Chairman of the Commission did not consider the impact of the alleged unauthorized action of the appellant in nominating/deputing substitute Invigilators at the particular examination centre. One can appreciate the Commission’s concern about mixing of the question papers of afternoon examination with the question papers of morning examination, but in the absence of any evidence to show that ‘P’ Section of the Commission, where the appellant was posted, had anything to do with the question papers or that he had custody of the question papers, the Commission was not at all justified in holding him guilty of the incident which occurred at the examination centre. Indeed, it is nobody’s case that the appellant was, in any way, responsible for mixing of the question papers. Therefore, the findings recorded by the Inquiry Officer and the two Authorities that the appellant was guilty of serious misconduct cannot be sustained. In the result, the appeals are allowed, the order of punishment passed by the Controller of Examinations and the appellate order passed by the Chairman of the Commission are quashed and it is declared that the appellant shall be entitled to all consequential benefits including the arrears of salary for the period during which he was kept out of employment. He shall also be entitled to the retiral benefits, which may be admissible to him under the relevant service rules. The concerned authority of the Commission is directed to pay the salary, allowances, etc., to the appellant within 4 months from the date of production of copy of this judgment. 24. While disposing of these appeals, we make it clear that this Court has 1Page 15 not expressed any opinion on the correctness or otherwise of order dated 28.2.2008 passed by the Full Bench of the High Court and the question whether a person, who holds higher post as in-charge in addition to his substantive post is entitled to exercise the powers of that post is left open to be decided in an appropriate case.

Page 1
 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1078-1079 OF 2013
.
A. Savariar     …Appellant
versus
The Secretary, Tamil Nadu
Public Service Commission and another             …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. These  appeals  are  directed  against  judgments  dated  28.2.2008  and
4.2.2010 of the Full Bench and the Division Bench respectively of the Madras
High Court whereby the appellant’s challenge to the order of the learned Single
Judge was negatived and his dismissal from service was upheld.
2. The  appellant  joined  service  under  the  Tamil Nadu  Public  Service
Commission (for short, ‘the Commission’) as Junior Assistant w.e.f. 1.9.1973.
While he was posted in ‘P’ Section of the Commission, which deals with the
appointment of Invigilators and Chief Invigilators for various examinations, the
Commission  issued  Notification  dated  8.8.1989  for  holding  competitive
examination for direct recruitment of Assistant Surgeons.  The main written
examination was conducted on 17.2.1990 and 18.2.1990.  Shri Syed Abdul
1Page 2
Kareem, who was appointed as Chief Invigilator at Bharathiar Government
Arts  College  for  Women,  North  Madras,  examination  centre,  met  the
Superintendent of Section ‘P’ on 15.2.1990 and requested him to appoint some
other person as Chief Invigilator by saying that he was suffering from heart
ailment.  When the Superintendent expressed his inability to accede to his
request, Shri Sayed Abdul Kareem asked for the list of persons who were to
assist him.  Thereupon, he was given a list of 19 persons.  Some of the persons
named in the list informed the Chief Invigilator on telephone that they were
unable to assist him.  Therefore, he again contacted the Superintendent of ‘P’
Section for appointment of substitute Invigilators.  The Superintendent then
asked the appellant to post five persons to assist the Chief Invigilator.  The
latter supplied the list of five persons including S/Shri Asir (School Assistant),
Khader Baig (Officer Assistant) and R. Mahalingam to Syed Abdul Kareem to
work as substitute Invigilators.
3. In the examination held on 17.2.1990, some (six) question papers of the
afternoon examination were found mixed up with the morning question papers.
When  the  students  pointed  out  this  discrepancy,  the  Chief  Invigilator
immediately instructed  to  take  back  the  question papers  of the  afternoon
examination and issue the question papers meant for morning examination.
This incident was reported in the newspapers. The Commission took serious
view of the matter and on the basis of  preliminary investigation done by the
concerned  officers,  departmental  proceedings  were  initiated  against  the
2Page 3
appellant under Rule 17(b) of the Tamil Nadu Civil Services (Classification,
Control and Appeal) Rules (for short, ‘the Rules’) on the following charges:
“(1) That Thiru. A.Savariar, Assistant, ‘P’  Section
who was in charge of appointment of Chief Invigilators
and  Invigilators  for  the  conduct  of  Main  Written
Examination relating to the post of Assistant Surgeon
in the Tamil Nadu Medical Service for the year 1989-
90  had  served  appointment  order  to  Thiru.  R.
Mahalingam, who was on leave, to act as an Invigilator
at Bharathiar Arts College for Women, Madras without
obtaining the orders of the Officer in charge of the
Section.
(2) That,  he  has  unauthorisedly issued  orders  of
appointment as Invigilator to one Thiru Asir, School
Assistant,  Government Training School,  Madras  for
Assistant Surgeon examination held on 17.02.1990 and
18.02.1990  at  Bharathiar  Arts  College  for  Women,
North Madras though his name was not included in the
list furnished by the Collector of Madras.
(3)  That,  he  deputed  by  orally instructing Thiru.
Khader Baig, Office Assistant of Commission's Office
to the Examination hall unauthorisedly.
(4) That, he has produced in the Court while filing a
petition for anticipatory bail the office note requiring
him  and  certain  other  staff  to  attend  office  on
17.02.1990 without the knowledge of the office. It is
highly irregular to produce an official record in the
Court without the sanction of the competent authority.
(5) That, he unauthorisedly went to the examination
hall without any reason or orders by neglecting his
office work for which he obtained permission to work
on the holiday (i.e., 17.02.1990).
(6) That, he has arrogated to himself the powers of
an officer and has functioned in a highhanded manner.”
 4. The appellant filed reply dated 22.6.1990 and denied the allegations
leveled against him.  He claimed that substitute Invigilators were appointed in
3Page 4
accordance with the rules and in view of the request made by  the Chief
Invigilator, the Superintendent ‘P’ Section had instructed him to do so.  
5. The Enquiry Officer appointed by the Commission submitted report
dated 31.12.1990 with the finding that Charges No.1, 2, 4 and 6 have been
proved  against  the  appellant.  The  Controller  of  Examinations,  who  was
holding charge of the post of the Secretary accepted the enquiry report and sent
a copy thereof to the appellant to enable him to make representation against the
findings  recorded  by  the  Enquiry  Officer.  The  appellant  filed  detailed
submissions dated  4.2.1991  and reiterated  that he had not committed any
misconduct. The Controller of Examinations rejected the appellant’s reply and
dismissed him from service vide order dated 25.3.1991, the operative portion
of which reads as under:
“I  have  carefully  and
thoroughly  examined  the
charges  framed  against  the
individual,  the  explanation
given  by  the  individual,  the
report  of  the  enquiry  officer
and  the  defence  statements
of  the  individuals.  The
charges  are  really  grave  in
nature.  The  Enquiry  officer
has held all charges excepting
charges  2  and  5  as  proved
beyond doubt and charges 3
4Page 5
and  5  as  not  pressed.  The
delinquent has acted in a high
handed manner arrogating to
himself  the  powers  of  his
superiors.  He  has  had  the
audacity  to  produce  certain
documents from the office to
the  court  unauthorisedly.
Such  acts  constitute
misdemeanor and misconduct
of the worst order and there
cannot  be  any  doubt  that
allowing such people to continue in service will
highly  jeopardize  the  proper  discharge  of
duties  of  the  Public  Service  Commission as
enshrined  in  the  Constitution.  The  public
interest  has  not  only  suffered  by  such
misconduct, but serious attempts have been
made to cut at the very roots of the integrity
of the Commission as a  whole.  Hence, there
appears no  scope to show any sympathy on
the individual and any leniency shown to  the
individual will  only  amount to abetting with
such undesirable staff in their misconduct and
ran  indiscipline.  I  entirely  agree  with  the
findings of  the Enquiry officer.  I hold charges
1,2,4 and 6 and as proved and charges 3, 5 as
not pressed. For the proved charges, Thiru A.
Savariar, Assistant is dismissed  from service
from 25.3.1991 afternoon.”
(reproduced from the SLP paper book)
6. The departmental appeal filed by the appellant was dismissed by the
Chairman of the Commission.  The Chairman first adverted to the procedure
followed for appointment of Invigilators and held that the  appellant’s  action
5Page 6
of appointing substitute Invigilators was unauthorized.  He then considered the
record and agreed with the Controller of Examinations that the appellant was
guilty of misconduct and four  charges were rightly found proved against him.
7. Writ Petition No.18836/1994 filed by the appellant for quashing the
orders passed by the Disciplinary and the Appellate Authorities was dismissed
by the learned Single Judge.  He observed that non-examination of the Chief
Invigilator, the Section Superintendent and the concerned Under Secretary was
inconsequential; that the enquiry was held in accordance with the prescribed
procedure and that the principle of proportionality cannot be invoked in the
appellant’s case simply because he had unblemished service of 17 years. The
learned Single Judge further held that the Controller of Examinations was
competent to exercise the power of the disciplinary authority.
8. The writ appeal filed by the appellant was referred to the larger bench
because coordinate benches of the High Court had expressed conflicting views
on the question of competence of the person holding charge of the higher post
to exercise the power and discharge the functions of that post.  The  Full
Bench answered that question in the following words:
“Under  such  circumstances,
unless  contrary  intention  is
expressed  by  the  Government
either  by  way  of  a  statutory
provision  or  by  way  of  an
executive  instruction,  a
Government  servant  who  holds
6Page 7
the  post  as  in-charge  has  got
power to discharge the statutory
functions  and  responsibilities  of
the said post.
Besides since already this issue has been covered by
the judgment of the Honourable Apex Court reported
in  1996  A.I.R. S.C.  1729  as referred above, we
are of the opinion, the view  of the
Division  reported  in  1997  Writ  L.R.  33
(C.Baskaran v. The District Collector, Trichy)  rendered in
W.A.No.1054 of 1983 is not a correct
law. Consequently, we hold  that an
officer-in-charge  of  a  post  has  got
power to discharge the powers and
statutory functions of the said post.
Consequently,  as  far  as  the  point  of  reference  is
concerned, we hold that the Officer who is holding the
post in-charge has got power to discharge the powers
and statutory functions of the said post.”
9. Thereafter, the matter was placed before the Division Bench, which
held that the order of punishment was not vitiated due to violation of the rules
of natural justice. The Division Bench observed that the appellant had been
given opportunity to inspect the record, copies of the depositions recorded at
the oral enquiry were supplied to him and he was allowed to file further
statement of defence before the Enquiry Officer and held that there was no
violation of the procedure prescribed under the Rules.
10. We have heard learned counsel for the parties. The scope of judicial
review in matters involving challenge to the disciplinary action taken by the
7Page 8
employer is very limited. The Courts are primarily concerned with the question
whether the enquiry has been held by the competent authority in accordance
with the prescribed procedure and whether the rules of natural justice have
been followed. The Court can also consider whether there was some tangible
evidence for proving the charge against the delinquent and such evidence
reasonably supports the conclusions recorded by the competent authority. If the
Court comes to the conclusion that the enquiry was held in consonance with
the prescribed procedure and the rules of natural justice and the conclusion
recorded by the disciplinary authority is supported by some tangible evidence,
then there is no scope for interference with the discretion exercised by the
disciplinary authority  to impose the particular punishment except when the
same is found to be wholly disproportionate to the misconduct found proved or
shocks the conscience of the Court.
11. In the  light of the  above,  it is to  be  seen  whether  the  appellant’s
dismissal from service was legally correct and the High Court rightly declined
to interfere with the orders passed by the punishing authority and the Appellate
Authority.
12. Rule 8 of the Rules specifies various penalties including dismissal from
service which can be imposed on a member of the Civil Service of the State or
a person holding Civil Post under the State.  Rule 17(b), which contains the
procedure for holding inquiry reads as under:
“17.(a) xxx xxx xxx
8Page 9
(b) (i) Without prejudice to the provisions of the Public Servants' Inquiries Act, 1850, (Central Act XXXVII of 1850), in every case
where it is proposed to impose on a member of a service or on a
person holding a Civil Post under the State any of the penalties specified in items (iv), (vi), (vii) and (viii) in rule 8, the grounds on
which it is proposed to take action shall be reduced to the form of a
definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which
each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He
shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry
or to be heard in person or both. An oral inquiry shall be held if
such an inquiry is desired by the person charged or is directed by
the authority concerned. Even if a person charged has waived an
oral inquiry, such inquiry shall be held by the authority concerned in
respect of charges which are not admitted by the person charged
and which can be proved only through the evidence of witnesses. At
that inquiry oral evidence shall be heard as to such of the allegations
as are not admitted, and the person charged shall be entitled to
cross-examine the witnesses to give evidence in person and to have
such witnesses called, as he may wish, provided that the officer
conducting the
inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. “Whether or not the person charged desired or had an oral inquiry, he shall be heard in person at any stage
if he so desires before passing of final orders. A report of the inquiry or personal hearing (as the case may be) shall be prepared by
the authority holding the inquiry or personal hearing whether or not
such authority is competent to impose the penalty. Such report shall
contain a sufficient record of the evidence, if any, and a statement
of the findings and the grounds thereof”.
“Whenever any inquiring authority, after having heard and recorded
the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by
its predecessor or partly recorded by its predecessor and partly recorded by itself:
Provided that if the succeeding inquiring authority is of the opinion
that further examination of any of the witnesses whose evidence has
9Page 10
already been recorded is necessary in the interest of justice, it may
recall examine, cross-examine and re-examine any such witnesses
as hereinbefore provided,”
(ii) After the inquiry or personal hearing referred to in clause (i) has
been completed, the authority competent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence
adduced  during the  inquiry, that  any of  the  penalties  specified
therein should be imposed on the Government Servant it shall  make
an order imposing such penalty and it shall not be necessary to give
the person charged any opportunity of making representation on the
penalty proposed to be imposed:
xxx xxx xxx”
13. An analysis of the above reproduced rule makes it clear that holding of
an oral inquiry is sine qua non for recording a finding by the inquiring authority
and the report of inquiry must contain sufficient record of evidence and a
statement of the findings together with grounds thereof.
14. The substratum of the main allegation leveled against the appellant was
that he had unauthorisedly issued order of appointment to R. Mahalingam, who
was on leave, to act as an Invigilator at Bharathiar Arts College for Women
and appointed Asir and Khader Baig as substitute Invigilators despite the fact
that their names were not included in the list furnished by the Collector of
Madras. The two other allegations leveled against the appellant were that he
had unauthorisedly produced office note dated 17.2.1990 in the Court and went
to the examination hall by neglecting his office work.
15. On behalf of the Commission oral evidence is said to have been adduced
1Page 11
to substantiate the allegations leveled against the appellant but neither the
report of the Enquiry Officer nor the orders  passed  by the Controller of
Examinations or the Chairman of the Commission make a mention of that
evidence and none of them relied upon the same for recording a finding that the
appellant  had  arrogated  to  himself  the  powers  of  his  superiors  and
unauthorisedly appointed Invigilators.   As a matter of fact, Enquiry Officer
simply referred  to  the  statement of the  appellant,  analysed  the  same  and
concluded that Charges No. 1, 2, 4 and 6 have been proved against him.  It is
thus evident that the inquiry report was not prepared in consonance with Rule
17(b)(i) of the Rules.
16. The Controller of Examinations went a  step  further and recorded  a
finding that the actions of the appellant had resulted in compromising the
integrity of the Commission as a whole.  The concerned officer did so despite
the fact that the appellant had not been charged with the allegation that he had
by his action/omission compromised with the integrity of the Commission and
no evidence was produced to substantiate the same.  The Appellate Authority,
i.e., the Chairman recorded detailed reasons but the order passed by him also
does not make reference to the evidence produced for proving the charges
leveled against the appellant.
17. The learned Single Judge and the Division Bench of the High Court
failed to notice the aforesaid fatal flaw in the orders passed by the Controller of
Examinations and the Chairman and decided the matter by assuming that even
1Page 12
though the Commission had not adduced any tangible evidence to prove the
charges against the appellant, the same stood proved because of the weakness
of his defence.
18. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972)
1 SCC 595, this Court held that it is the primary duty of the person making the
allegations  to  establish  the  same  by  producing evidence  and  not  for  the
delinquent to produce negative evidence to prove his innocence.
19. In Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570, this
Court considered the question whether mere production of the document by the
department is sufficient for holding the employee guilty and observed:
“Indisputably,  a  departmental  proceeding  is  a  quasi-judicial
proceeding.  The  enquiry  officer  performs  a  quasi-judicial
function.  The  charges  levelled  against  the  delinquent officer
must be found to have been proved. The enquiry officer has a
duty to arrive at a finding upon taking into consideration the
materials  brought  on  record  by  the  parties.  The  purported
evidence  collected  during  investigation  by  the  investigating
officer against all the accused by itself could not be treated to be
evidence  in  the  disciplinary  proceeding.  No  witness  was
examined  to  prove  the  said  documents.  The  management
witnesses merely tendered the documents and did not prove the
contents thereof. Reliance, inter alia, was placed by the enquiry
officer  on  the  FIR  which  could  not  have  been  treated  as
evidence.
We  have  noticed  hereinbefore  that  the  only  basic  evidence
whereupon reliance has been placed by the enquiry officer was
the  purported  confession  made  by  the  appellant  before  the
police. According to the appellant, he was forced to sign on the
said confession, as he was tortured in the police station. The
appellant being an employee of the Bank, the said confession
should have  been  proved.  Some evidence  should have been
1Page 13
brought on record to show that he had indulged in stealing the
bank draft book. Admittedly, there was no direct evidence. Even
there  was  no  indirect  evidence.  The  tenor  of  the  report
demonstrates that the enquiry officer had made up his mind to
find him guilty as otherwise he would not have proceeded on the
basis that the offence was committed in such a manner that no
evidence was left.”
20. De hors the above conclusion, we are satisfied that the punishment of
dismissal imposed on the appellant is legally unsustainable. The Controller of
Examinations and the Chairman of the Commission did not consider the impact
of the alleged unauthorized action of the appellant in nominating/deputing
substitute Invigilators at the particular examination centre. One can appreciate
the Commission’s concern about mixing of the question papers of afternoon
examination with the  question papers  of morning examination, but  in the
absence of any evidence to show that ‘P’ Section of the Commission, where
the appellant was posted, had anything to do with the question papers or that
he had custody of the question papers, the Commission was not at all justified
in holding him guilty of the incident which occurred at the examination centre.
Indeed, it is nobody’s case that the appellant was, in any way, responsible for
mixing of the question papers.  Therefore, the findings recorded by the Inquiry
Officer  and  the  two  Authorities  that  the  appellant  was  guilty of  serious
misconduct cannot be sustained.
21. The  learned  Single  Judge  and  the  Division  Bench  failed  to  take
cognizance of the fact that the branch in which the appellant was working was
1Page 14
not concerned with custody of the question papers and he is not shown to have
handled  the  bundles  of  the  question  papers  at  the  examination  centre.
Therefore, the gravity of the misconduct found proved against the appellant,
viz., nomination/deputation of the Invigilators at the particular examination
centre was not such which could influence any person of reasonable prudence
to impose the extreme penalty of dismissal from service. 
22. In view of the above discussion, we may have remitted the case to the
Commission for reconsideration of the entire matter but, keeping in view the
fact that the appellant has already retired from service and he had put in
unblemished service of 17 years, we do not consider it proper to adopt that
course. 
23. In the result, the appeals are allowed, the order of punishment passed by
the Controller of Examinations and the appellate order passed by the Chairman
of the Commission are quashed and it is declared that the appellant shall be
entitled to all consequential benefits including the arrears of salary for the
period during which he was kept out of employment. He shall also be entitled
to the retiral benefits, which may be admissible to him under the relevant
service rules. The concerned authority of the Commission is directed to pay the
salary, allowances, etc., to the appellant within 4 months from the date of
production of copy of this judgment.
24. While disposing of these appeals, we make it clear that this Court has
1Page 15
not expressed  any opinion on the correctness or otherwise of order dated
28.2.2008  passed  by the Full Bench of the  High Court and  the question
whether  a  person,  who  holds higher post  as  in-charge  in addition to  his
substantive post is entitled to exercise the powers of that post is left open to be
decided in an appropriate case.
..….………………….…J.
           [G.S. SINGHVI]
..….………………….…J.
           [H.L. GOKHALE]
New Delhi,
February 15, 2013.
1

Two FIR s =The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance.

Page 1
Reportabl
e
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.305     OF 2013
(Arising out of S.L.P. (Crl.) No. 9276 of 2012)
Surender Kaushik and others ...
Appellants
Versus
State of Uttar Pradesh and others                  
..Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The  present  appeal,  by  special  leave,  is  directed
against the order dated 12.10.2012 passed by the
Division  Bench  of  the  High  Court  of  Judicature  at
Allahabad in Criminal Miscellaneous Writ Petition No.
15077 of 2012 wherein the High Court has declined
to quash the FIR No. 442 of 2012 registered at P.S.
Civil Lines, Meerut, that has given rise to Crime No.Page 2
491 of 2012 for offences punishable under Sections
406, 420, 467, 468, 471, 504 and 506 of the Indian
Penal Code (for short “the IPC”).  
3. At the very outset, it is requisite to be stated that the
appellants had invoked the jurisdiction under Article
226 of the Constitution for quashment of the FIR on
two counts, namely, first, that no prima facie case
existed for putting the criminal law into motion and,
second, when on the similar and identical cause of
action  and  allegations,  FIR  No.  425  of  2012
corresponding to Crime No. 475 of 2012 had already
been registered, a second FIR could not have been
lodged  and  entertained.   The  High  Court,  by  the
impugned order, has opined that it cannot be held
that no prima facie case is disclosed and, thereafter,
proceeded to issue certain directions in relation to
surrender before the concerned court and grant of
interim bail in view of the decision rendered by the
Full Bench of the Allahabad High Court in Amrawati
and another  v.  State of UP
1
and Lal Kamlendra
1
 2005 Cri. L.J. 755
2Page 3
Pratap  Singh  v.  State  of  Uttar  Pradesh  and
others
2
.  
4. We are not adverting to the second part of the order
as the controversy in this regard has not emerged
before this Court in the present case.  The assail to
the validity of registration of second FIR has not been
dealt with  by the  High  Court.   Mr.  Nagendra Rai,
learned senior counsel appearing for the appellants,
did not advance any contention and, rightly so, with
regard to  the  existence of a prima  facie case for
registration of the FIR, but emphatically put forth the
proponements  pertaining  to  the  validity  of
entertaining the second FIR despite the lodgment of
an earlier FIR in respect of the same cause of action
and the same incident.  Therefore, we shall restrict
our delineation to the said sentinel issue exclusively.
5. From  the  factual  background  which  has  been
exposited in this appeal and the documents annexed
thereto, it is limpid that FIR No. 274 of 2012 was
lodged by the appellant No. 1, Surender Kaushik, as
the Secretary of Sanjeev Memorial Education Society
2
 (2009) 4 SCC 437
3Page 4
on 29.5.2012 against Dr. Subhash Gupta, Dr. Harshu
Gupta and Yunus Pahalwan, members of the society,
alleging  that  in  collusion  with  one  Surya  Prakash
Jalan,  they  had  prepared  fake  and  fraudulent
documents.   It  was  further  alleged  that  their
signatures  had  been  forged  indicating  their
participation  in various general/executive meetings
of the society, though they had not attended the said
meetings.  On the basis of the said FIR, a crime under
Sections  420,  467,  468  and  471  of  the  IPC  was
registered.
6. One Dr. Subhash Gupta filed an application before
the  Additional  Chief  Judicial  Magistrate,  Meerut,
under  Section  156(3)  of  the  Code  of  Criminal
Procedure (for brevity “the Code”) alleging, inter alia,
that he was never a member of the Sanjeev Memorial
Education  Society,  Ghaziabad  and  further  he  was
neither present in the meetings of the society which
were held on 1.10.2008 and 16.4.2009 nor was he a
signatory  to  the  resolutions  passed  in  the  said
meetings.   It  was  further  asseverated  in  the
4Page 5
application that the accused persons, namely, P.C.
Gupta,  Seema  Gupta,  Surender  Kaushik,  Kamlesh
Sharma and Vimal Singh, had fabricated an affidavit
on  15.12.2008  with  forged  signatures  and  filed
before the Deputy Registrar, Society Chit and Fund,
Mohanpuri,  Meerut.   The  said  petition  was
entertained and on the basis of the direction of the
learned Magistrate, FIR No. 425 of 2012 was lodged
on  21.8.2012  for  the  offences  punishable  under
Sections 406, 420, 467, 468, 471, 504 and 506 of the
IPC.
7. As the facts would further unfurl, FIR No. 442 of 2012
which  gave  rise  to  Crime  No.  491  of  2012  was
registered on 4.9.2012 and it is apt to note that the
said FIR came to be registered on the basis of an
order  passed  by  the  learned  Magistrate  under
Section 156(3) of the Code.  In the said case, the
complainant  was  Smt.  Nidhi  Jalan,  one  of  the
members of the Governing Body of the society, and it
was  alleged  that  she  is  a  member  of  the  society
which runs an educational institution, namely, Mayo
5Page 6
International  School,  and  the  accused  persons,
namely,  P.C.  Gupta,  Seema  Gupta,  Vikash  Jain,
Bhawna  Jain,  Sushil  Jain,  Shubhi  Jain,  Surender
Kaushik,  Kamlesh  Sharma,  Rajender  Sharma,
Virender Bhardwaj, Vimal Singh and Renu Sharma,
having  entered  into  a  conspiracy  had  prepared
forged  documents  regarding  meetings  held  on
different dates, fabricated signatures of the members
and filed before the competent authority with  the
common intention to grab the property/funds of the
society.  Be it noted, the members had filed affidavits
before the competent authority that they had never
taken  part  in  the  meetings  of  the  school
management and had not signed any papers.  As
already  stated,  the  said FIR  pertained to  offences
punishable under Sections 406, 420, 467, 468, 471,
504 and 506 of the IPC.
8. It is submitted by Mr. Nagendra Rai, learned senior
counsel, that the FIR No. 442 of 2012 could not have
been  lodged  and  entertained  as  law  prohibits
lodgment of the second FIR in respect of the same
6Page 7
cognizable offence and it is propounded by him that
when  there  is  a  legal  impediment  for  setting  the
criminal  law  in  motion,  the  decision  in  State  of
Haryana  and  others  v.  Bhajan  Lal  and  others
3
gets attracted.  To bolster the contention that the
second  FIR  could  not  have  been  entertained,  the
learned  senior  counsel  has  commended  us  to  the
decisions in  T.T.  Antony  v.  State  of  Kerala  and
others
4
,  Pandurang  Chandrakant  Mhatre  and
others v. State of Maharashtra
5
 and Babubhai v.
State of Gujarat and others
6
.
9. Mr. R.K. Dash, learned senior counsel for the State,
per  contra,  submitted  that  there  is  no  absolute
prohibition in law for lodgment of a second FIR and,
more so, when allegations are made from different
spectrum or, for that matter, when different versions
are  put  forth  by  different  persons  and  there  are
different accused persons.  It is urged by him that the
decisions  relied  upon  by  the  appellants  are
3
 1992 Supp (1) SCC 335
4
 (2001) 6 SCC 181
5
 (2009) 10 SCC 773
6
 (2010) 12 SCC 254
7Page 8
distinguishable on facts and the proposition of law
laid down therein is not applicable to the case at
hand.   The  learned  senior  counsel  would  further
contend  that  the  principles  stated  in  Ram  Lal
Narang  v.  State  (Delhi  Administration)
7
 and
Upkar  Singh  v.  Ved  Prakash  and  others
8
 are
attracted to the case at hand.
10. Mr. Altaf Ahmed, learned senior counsel appearing
for the complainant, the fourth respondent herein,
has submitted that on certain occasions, same set of
facts  may  constitute  different  offences  and  when
there  are  two  distinct  offences  having  different
ingredients,  there  would  be  no  embargo  for
registration of two FIRs.  It is further canvassed by
him that on certain occasions, two FIRs may have
some overlapping features but it is the substance of
the allegations which has to be looked into, and if a
restricted view is taken, then no counter FIR can ever
be lodged.  The learned senior counsel would further
submit that the investigation by the police cannot be
7
 (1979) 2 SCC 322
8
 (2004) 13 SCC 292
8Page 9
scuttled and the accused persons cannot be allowed
to pave the escape route in this manner.  It has been
highlighted by him that lodging of second FIR for the
same  cause  of  action  or  offence  is  based  on  the
principle that a person should not be vexed twice,
but  if  there  are  offences  having  distinctive
ingredients  and  overlapping features,  it would  not
invite the frown of Article 20 of the Constitution of
India.  The pronouncement in State (NCT of Delhi)
v.  Navjot  Sandhu  alias  Afsan  Guru
9
 has  been
commended to us.
11. Chapter XII of the Code deals with information to the
police and their powers to investigate.  As provided
under  Section  154 of the  Code,  every information
relating to commission of a cognizable offence either
given orally or in writing is required to be entered in
a  book  to  be  kept  by  the  officer-in-charge  of  the
concerned police station.  The said FIR, as mandated
by law, has to pertain to a cognizable case.  Section
9
 (2005) 11 SCC 600
9Page 10
2(c) of the Code defines “cognizable offence” which
also deals with cognizable cases.  It reads as follows:-
“cognizable offence” means an offence for
which,  and  “cognizable  case”  means  a
case  in  which,  a  police  officer  may,  in
accordance  with  the  First  Schedule  or
under any other law for the time being in
force, arrest without warrant;”
12. If  the  primary  requirement  is  satisfied,  an  FIR  is
registered and the criminal law is set in motion and
the officer-in-charge of the police station takes up the
investigation.   The question  that has emerged  for
consideration  in  this  case  is  whether  after
registration  of  the  FIR  and  commencement  of  the
investigation,  a  second  FIR  relating  to  the  same
incident on the basis of a direction issued by the
learned Magistrate under Section 156(3) of the Code
can be registered.
13. For apposite appreciation of the issue raised, it is
necessitous  to  refer  to  certain  authorities  which
would  throw  significant  light  under  what
circumstances  entertainment  of  second  FIR  is
prohibited.  In  Ram  Lal  Narang  (supra), this Court
was dealing with the facts and circumstances of a
10Page 11
case where two FIRs were lodged and two chargesheets were filed.  The Bench took note of the fact
that the conspiracy which was the subject-matter of
the second case could not be said to be identical with
the conspiracy which was the subject-matter of the
first one and further the conspirators were different,
although  the  conspiracy  which  was  the  subjectmatter of the first case may, perhaps, be said to have
turned out to be a part of the conspiracy which was
the  subject-matter  of  the  second  case.   After
adverting to the various facets, it has been opined
that  occasions  may  arise  when  a  second
investigation started independently of the first may
disclose  wide  range  of  offences  including  those
covered by the first investigation.  Being of this view,
the Court did not find any flaw in the investigation on
the basis of the subsequent FIR.
14. In T.T. Antony  (supra), it was canvassed on behalf
of  the  accused  that  the  registration  of  fresh
information in respect of the very same incident as
an FIR under Section 154 of the Code was not valid
11Page 12
and,  therefore,  all  steps  taken  pursuant  thereto
including investigation were illegal and liable to be
quashed.  The Bench, analyzing the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169,
170 and 173 of the Code, came to hold that 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  and,
therefore,  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. It was further observed that 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
12Page 13
the same occurrence and file one or more reports as
provided in Section 173 of the Code.
15. It is worth noting that in the said case, the two-Judge
Bench  explained  and  distinguished  the  dictum  in
Ram  Lal Narang (supra) by opining that the Court
had indicated that the real question was whether the
two  conspiracies  were  in  truth  and  substance  the
same and held that the conspiracies in the two cases
were not identical. It further proceeded to state that
the  Court  did  not  repel  the  contention  of  the
appellant regarding the illegality of the second FIR
and the investigation based thereon being vitiated,
but on facts found that the two FIRs in truth and
substance were different since the first was a smaller
conspiracy and the second was a larger conspiracy as
it  turned  out  eventually.  Thereafter,  the  Bench
explained thus: -
“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
13Page 14
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.”
16. In  Upkar  Singh  (supra), a three-Judge Bench was
addressing the issue pertaining to the correctness of
law laid down in the case of  T.T.  Antony (supra).
The  larger  Bench  took  note  of  the  fact  that  a
complaint was lodged by the first respondent therein
with Sikhera Police Station in Village Fahimpur Kalan
at  10.00  a.m.  on  20
th
 May,  1995  making  certain
allegations against the appellant therein and some
other persons.  On the basis of the said complaint,
the police had registered a crime under Sections 452
and 307 of the IPC.   The appellant had lodged a
complaint in regard to the very same incident against
the  respondents  therein  for  having  committed
offences punishable under Sections 506 and 307 of
the IPC as against him and his family members.  As
the  said  complaint  was  not  entertained  by  the
concerned  police,  he,  under  compelling
circumstances, filed a petition under Section 156(3)
of  the  Code  before  the  Judicial  Magistrate,  who
14Page 15
having  found  a  prima  facie  case,  directed  the
concerned police station to register a crime against
the accused persons in the said complaint and to
investigate the same and submit a report.  On the
basis of the said direction, Crime No. 48-A of 1995
was  registered  for  offences  punishable  under
Sections  147,  148,  149  and  307  of  the  IPC.
Challenging the direction of the Magistrate, a revision
was preferred before the learned Sessions Judge who
set aside the said direction.  Being aggrieved by the
order  passed  by  the  learned  Sessions  Judge,  a
Criminal Miscellaneous petition was filed before the
High Court of Judicature at Allahabad and the High
Court, following its earlier decision in  Ram  Mohan
Garg  v.  State  of  U.P.
10
,  dismissed  the  revision.
While dealing with the issue, this Court referred to
paragraph 18 of T.T. Antony (supra) and noted how
the same had been understood: -
“11. This  observation  of  the  Supreme
Court in the said case of  T.T. Antony is
understood by the learned counsel for the
respondents as the  Code prohibiting the
filing of a second complaint arising from
10
 (1990) 27 ACC 438
15Page 16
the same incident. It is on that basis and
relying on the said judgment in T.T. Antony
case an argument is addressed before us
that  once  an  FIR  is  registered  on  the
complaint of one party a second FIR in the
nature of a counter-case is not registrable
and  no  investigation  based  on  the  said
second complaint could be carried out.”
17. After so observing, the Court held that the judgment
in T.T. Antony (supra) really does not lay down such
a proposition of law as has been understood by the
learned  counsel  for  the  respondent  therein.   The
Bench referred to the factual score of  T.T.  Antony
(supra) and explained thus:-
“Having carefully gone through the above
judgment, we do not think that this Court
in the said cases of T.T. Antony v. State of
Kerala has precluded an aggrieved person
from filing a counter-case as in the present
case.”
To arrive at such a conclusion, the Bench referred to
paragraph  27  of  the  decision  in  T.T.  Antony (supra)
wherein  it  has  been  stated  that  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
16Page 17
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 of the Code
or under Articles 226/227 of the Constitution. Thereafter,
the three-Judge Bench ruled thus:
“In our opinion, this Court in that case only
held  that  any  further  complaint  by  the
same  complainant  or  others  against  the
same  accused,  subsequent  to  the
registration of a case, is prohibited under
the Code because an investigation in this
regard  would  have  already  started  and
further  complaint  against  the  same
accused will amount to an improvement on
the  facts  mentioned  in  the  original
complaint, hence will be prohibited under
Section 162 of the Code. This prohibition
noticed by this Court, in our opinion, does
not  apply  to  counter-complaint  by  the
accused  in  the  first  complaint  or  on  his
behalf alleging a different version of the
said incident.”
18. Be it noted, in the said verdict, reference was made
to  Kari  Choudhary  v.  Sita  Devi
11
, wherein it has
been opined that there cannot be two FIRs against
the same accused in respect of the same case, but
when there are rival versions in respect of the same
episode, they would normally take the shape of two
11
 (2002) 1 SCC 714
17Page 18
different FIRs and investigation can be carried out
under  both  of  them  by  the  same  investigating
agency.  Reference was made to the pronouncement
in  State  of  Bihar  v.  J.A.C.  Saldanha
12
 wherein it
has  been  highlighted  that  the  power  of  the
Magistrate under Section 156(3) of the Code to direct
further investigation is clearly an independent power
and does not stand in conflict with the power of the
State Government as spelt out under Section 3 of the
Police Act.
19. It is worth noting that the Court also dealt with the
view  expressed  in  Ram  Lal  Narang (supra)  and
stated thus: -
“22. A  perusal  of  the  judgment  of  this
Court in  Ram Lal Narang v.  State (Delhi
Admn.) also  shows  that  even  in  cases
where  a  prior  complaint  is  already
registered,  a  counter-complaint  is
permissible but it goes further and holds
that even in cases where a first complaint
is registered and investigation initiated, it
is possible to file a further complaint by
the  same  complainant  based  on  the
material  gathered  during  the  course  of
investigation.  Of  course,  this  larger
proposition of law laid down in  Ram Lal
Narang case is not necessary to be relied
12
 (1980) 1 SCC 554
18Page 19
on by us in the present case. Suffice it to
say that the discussion in Ram Lal Narang
case is in the same line as found in the
judgments in Kari Choudhary and State of
Bihar v. J.A.C. Saldanha. However, it must
be noticed that in  T.T. Antony case,  Ram
Lal Narang case was noticed but the Court
did not express any opinion either way.”
20. Explaining further, the Court observed that if the law
laid down by this Court in T.T. Antony (supra) is to
be accepted to have held that a second complaint in
regard  to  the  same  incident  filed  as  a  counter
complaint  is  prohibited  under  the  Code,  such
conclusion  would  lead  to  serious  consequences
inasmuch  as  the  real  accused  can  take  the  first
opportunity  to  lodge  a  false  complaint  and  get  it
registered by the jurisdictional police and then that
would preclude the victim to lodge a complaint.
21. In  Pandurang  Chandrakant  Mhatre (supra),  the
Court  referred  to  T.T.  Antony (supra),  Ramesh
Baburao  Devaskar  v.  State  of  Maharashtra
13
and Vikram v. State of Maharashtra
14
 and opined
that  the  earliest  information  in  regard  to  the
commission of a cognizable offence is to be treated
13
 (2007) 13 SCC 501
14
 (2007) 12 SCC 332
19Page 20
as the first information report and it sets the criminal
law in motion and the investigation commences on
that basis.  Although the first information report is
not expected to be an encyclopaedia of events, yet
an  information  to  the  police  in  order  to  be  first
information report under Section 154(1) of the Code,
must contain some essential and relevant details of
the  incident.   A  cryptic  information  about  the
commission of a cognizable offence irrespective of
the nature and details of such information may not
be  treated  as  first  information  report.   After  so
stating, the Bench posed the question whether the
information  regarding  the  incident  therein  entered
into  general  diary  given  by  PW-5  is  the  first
information report within the meaning of Section 154
of the Code and, if so, it would be hit by Section 162
of the Code.  It is worth noting that analyzing the
facts, the Court opined that information given to the
police to rush to the place of the incident to control
the situation need not necessarily amount to an FIR.
20Page 21
22. In Babubhai (supra), this Court, after surveying the
earlier decisions, expressed the view that the court
has to examine the facts and circumstances giving
rise to both the FIRs and the test of sameness is to
be applied to find out whether both the FIRs relate to
the same incident in respect of the same occurrence
or are in regard to the incidents which are two or
more parts of the same transaction. If the answer is
in  the  affirmative,  the  second  FIR  is  liable  to  be
quashed. However, in case the contrary is proved,
where the version in the second FIR is different and
they are in respect of two different incidents/crimes,
the second FIR is permissible.  In case the accused in
the first FIR comes forward with a different version or
counterclaim  in  respect  of  the  same  incident,
investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court
expressed the view that the High Court had correctly
reached the conclusion that the second FIR was liable
to be quashed as in both the FIRs, the allegations
related to the same incident that had occurred at the
21Page 22
same place in close proximity of time and, therefore,
they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that
the lodgment of two FIRs is not permissible in respect
of  one  and  the  same  incident.   The  concept  of
sameness has been given a restricted meaning.  It
does not encompass filing of a counter FIR relating to
the same or connected cognizable offence.  What is
prohibited  is  any  further  complaint  by  the  same
complainant and others against the same accused
subsequent to the registration of the case under the
Code, for an investigation in that regard would have
already  commenced  and  allowing  registration  of
further complaint would amount to an improvement
of the facts mentioned in the original complaint.  As
is further made clear by the three-Judge Bench in
Upkar Singh (supra), the prohibition does not cover
the allegations made by the accused in the first FIR
alleging  a  different  version  of  the  same  incident.
Thus, rival versions in respect of the same incident
22Page 23
do take different shapes and in that event, lodgment
of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No.
274 of 2012 against four accused persons alleging
that  they  had  prepared  fake  and  fraudulent
documents.  
The second FIR came to be registered
on the basis of the direction issued by the learned
Additional  Chief  Judicial  Magistrate  in  exercise  of
power  under  Section  156(3)  of  the  Code  at  the
instance of another person alleging, inter alia, that he
was  neither  present  in  the  meetings  nor  had  he
signed any of the resolutions of the meetings and the
accused  persons,  five  in  number,  including  the
appellant  No.  1  herein,  had  fabricated  documents
and filed the same before the competent authority.
FIR No. 442 of 2012 (which gave rise to Crime No.
491  of 2012)  was  registered because of  an  order
passed by the learned Magistrate.  Be it noted, the
complaint  was  filed  by  another  member  of  the
Governing Body of the Society and the allegation was
that  the  accused  persons,  twelve  in  number,  had
23Page 24
entered  into  a  conspiracy  and  prepared  forged
documents relating to the meetings held on different
dates.  
 There  was  allegation  of  fabrication  of  the
signatures  of  the  members  and  filing  of  forged
documents before the Registrar of Societies with the
common intention to grab the property/funds of the
Society.  If the involvement of the number of accused
persons  and  the  nature  of  the  allegations  are
scrutinized, it becomes crystal clear that every FIR
has a different spectrum.
The allegations made are
distinct  and  separate.   It  may  be  regarded  as  a
counter  complaint  and  cannot  be  stated  that  an
effort has been made to improve the allegations that
find place in the first FIR.
 It is well-nigh impossible to
say that the principle of sameness gets attracted.
We are inclined to think so, for if the said principle is
made  applicable  to  the  case  at  hand  and  the
investigation is scuttled by quashing the FIRs, the
complainants in the other two FIRs would be deprived
of  justice.   
The  appellants  have  lodged  the  FIR
making the allegations against certain persons, but
24Page 25
that does not debar the other aggrieved persons to
move the court for direction of registration of an FIR
as there have been other accused persons including
the  complainant  in  the  first  FIR  involved  in  the
forgery  and  fabrication  of  documents  and  getting
benefits from the statutory authority.  In the ultimate
eventuate, how the trial would commence and be
concluded  is  up  to  the  concerned  court.   The
appellants or any of the other complainants or the
accused persons may move the appropriate court for
a  trial  in  one  court.   That  is  another  aspect
altogether.  But to say that it is a second FIR relating
to the same cause of action and the same incident
and there is sameness of occurrence and an attempt
has been made to improvise the case is not correct.
Hence, we conclude and hold that the submission
that the FIR lodged by the fourth respondent is a
second FIR and is, therefore, liable to be quashed,
does not merit acceptance.
26. In  view  of  the  aforesaid  premised  reasons,  the
appeal, being sans substance, stands dismissed.
25Page 26
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
                                           [Dipak Misra]
New Delhi;
February 14, 2013
26