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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDCTION

CRIMINAL APPEAL NO.  2039              OF 2012 (Arising out of SLP (Crl) No.9475 of 2008)

Anju Chaudhary ... Appellant

Versus

State of U.P. & Anr. ...  Respondents

J U D G M E N T

Swatanter Kumar, J.

1. Leave granted.

2. A cardinal question of public importance and one that is  

likely to arise more often than not in relation to the lodging of  

the First Information Report (FIR) with the aid of Section 156(3)  

of  the  Code of  Criminal  Procedure  (for  short,  ‘the  Code’)  or  

otherwise independently within the ambit of Section 154 of the  

Code  is  as  to  whether  there  can  be  more  than  one  FIR  in

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relation to the same incident or different incidents arising from  

the same occurrence.   

3. The above question arises from the factual matrix which,  

shorn of the unnecessary details, can be stated as follows:

4. On 16th November, 2007, one Parvez Parwaz, Respondent  

No.2, claiming himself to be a social activist filed an application  

under  Section  156(3)  in  the  Court  of  the  Chief  Judicial  

Magistrate,  Gorakhpur.   According  to  this  complaint,  one  

Mahant Aditya Nath Yogi, Member of Parliament and leader of  

an unregistered organization called the Hindu Yuva Vahini had  

been  spreading  hatred  amongst  Hindus  and  Muslims  for  a  

number of years and has also been causing fear amongst the  

Muslim  community  and  harming  them,  demolishing  the  

properties  of  Muslims  and  carrying  out  other  acts  of  

harassment.    On 27th January,  2007 when the complainant,  

Respondent No.2 herein, was returning home from the Railway  

Station,  Gorakhpur  at  about  8.00  p.m.,  Yogi  Aditya  Nath,  

Member  of  Parliament,  Dr.  Radha  Mohan  Dass  Aggarwal,  

Member of the Legislative Assembly, Dr. Y. D. Singh, Member of  

the  Legislative  Council  and  Anju  Chowdhary,  Mayor  of  

Gorakhpur,  the Minister  of  State and BJP Leader Shiv Pratap  

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Shukla, other office bearers and thousands of activists of Hindu  

Yuva  Vahini,  BJP  and  Vyapar  Mandal,  Gorakhpur,  as  well  as  

various other persons whom the petitioner does not know by  

name but can recognise, were holding a meeting as “Warning  

Meeting”.  The meeting which was addressed by Yogi Aditya  

Nath who was saying that if blood of one Hindu be shed then  

they will not register any FIR with the administration  against  

the bloodshed of one Hindu in the times to come, instead they  

will get ten persons (Muslims) killed.  If damage is done to the  

shops and properties of Hindus, they would indulge in similar  

activities towards the Muslims.  Anything can be done to save  

the glory of Hindus and all should prepare for a fight.  Amongst  

others, it was also stated in the complaint as under:

“He stated that we will not allow lifting of  Tazia anywhere in the Gorakhpur City and  the  Gorakhpur  District  and  we  will  also  celebrate our Holi  with these Tazias.   He  stated  that  we  will  have  to  take  harsh  steps for the welfare of Hindus and we do  not  want  that  the  generations  to  come  remember us with bad names.  He stated  that  I  do  not  understand that  we will  be  ready to take up those names, therefore,  be ready to fight your final battle.  Member  of Parliament Yogi Aditya Nath stated that  once  you  stand  up  then  you  see  that  Gorakhpur  will  remain  peaceful  for  many  

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years.  If the administration  does not take  revenge of the murder of the Trader’s son,  then  we  will  take  ourselves,  we  will  ourselves  take  revenge  of  that  murder.  Member of Parliament Yogi Aditya Nath, in  his  speech,  termed the  administration  as  worthless and eunuch and the incidents as  Government  sponsored  terrorism  and  challenging the democratic Government he  stated that they will  destroy the law and  order and will take law in their own hands.  He also called for bandh of Gorakhpur and  Basti Divisions and directed the activists to  inform about  this  to  every place through  every  media.   Thereafter,  Member  of  Parliament  Yogi  Aditya  Nath  led  a  torch  procession and hundreds of activists along  with abovenamed persons participated and  raised  slogans  in  support  of  Yogi  Aditya  Nath.  In this procession, the slogan related  to spreading of hatred against Muslims and  sentiments  of  killing  and  harming  them  was being raised with primary importance,  which  was  pronounced  as  “Katuye  Kaate  Jayenge,  Ram – Ram Chillanyenge”.   The  petitioner  got  afraid  very  much  by  the  above  incident  and  keeping  in  view  the  danger to his life, went to the house of a  relative.   The  petitioner  saw  at  many  places  in  the  way  that  these  elements  raising  exciting  slogans  behaved  improperly  by  passing  humiliating  comments  on  Burqa  –  clad  women  and  beared Muslim passers by and beat them  and  fired  several  rounds  in  the  air.   All  these  incidents  including  the  public  meeting  and  torch  procession  was  

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witnessed  by  a  number  of  people  apart  from  me,  who  I  know  by  name  and  address,  but  I  do  not  deem it  proper  to  reveal their names in the present situation  due to reason of insecurity.

5. That  after  the  night  of  26th January,  2007,  due  to  highly  sensitive  condition  prevailing  in  the  town Gorakhpur,  curfew  was imposed on three Police Station areas  of  the  Gorakhpur  town  and  Section  144  was in force in entire Gorakhpur city area  including the places of public meeting and  the  torch  procession.   Despite  this,  the  aforesaid  unconstitutional  meeting  and  torch  procession  was  organized  and  conducted openly violating the Section 144  in presence Police Officers and the public  was  provoked  and  directed  to  perform  criminal acts by the activists present there  and  the  activists  of  other  places  were  provoked through them.  Aditya Nath Yogi  provoked  Hindus  to  kill  Muslims  and  rob  and set afire their houses and shops and to  destruct  their  religious  places  and Tazias  for the reason of the murder of Raj Kumar  Agrahari (incident of 26/27th January, 2007  Gorakhpur Town) and the alleged incidents  happending  since  24th January,  2007  and  also provoked Muslims to not to celebrate  Muharram which was a conspiracy hatched  by  him  on  the  basis  of  his  maligned  thought and to fulfil which, he was looking  for  an  appropriate  situation.   Under  this  very  conspiracy,  criminal  incidents  were  carried  out  in  the  Gorakhpur  and  Basti  Divisions, which caused disruption of Law  and Order.

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6. That as a result of the speech given  by Yogi Aditya Nath in the public meeting  on 27th January, 2007, torch procession and  conspiracy  hatched  by  abovenamed  persons  present  with  him,  the  shops,  houses, godowns and vehicles of Muslims  were  robbed  and  set  afire  in  Gorakhpur  Police Station Areas in Gorakhpur Town by  the  Yogi  supported  Hindu  Yuva  Vahini,  activists  of  BJP,  Vyapar  Mandal,  which  created an atmosphere of fear and terror.  Gorakhnath temple became main centre of  communal  miscreant  activities  of  the  followers of this Yogi Aditya Nath and their  refuge and these miscreants attacked the  houses  of  Muslims  residing  in  the  area  adjoining the temple premises, their shops  and godowns and the vehicles of Muslims  standing  there  (Trucks,  Rickshaw,  Scooters,  Cars,  etc.)  and  set  them  afire  which  caused  which  loss.   Under  the  criminal  conspiracy  and  instigation  of  Member  of  Parliament  Yogi  and  the  abovenamed persons, the followers of Yogi  Aditya  Nath  killed  Rashid  R/O  Sahabgunj  S/O  Rasheed  R/O  Rahmat  Nagar,  P.S.  Rajghat in the Rajghat Police Station area  and  such  followers  also  tried  to  kill  by  setting  afire  by  pouring  petrol  on  Peshimam  Tufail  Ahmad  S/O  Munnavar  Hussain  R/O  Singharia  in  Cantt.   Police  Station  area  and  such  followers  also  caused  huge  loss  by  destructing  Mosque  situated at  Menhadia village under Police  Station Gagaha and such followers also set  afire the religious epic Kuran in the Mosque  of  Village  Etkhauli  and  caused  loss  by  

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destructing  the  Mosque  under  the  Police  Station Gagaha and such followers also set  afire  the  madarsa  situated  in  village  Vasudiha under Police Station Gagaha and  also set afire Tazias and such followers also  set  afire  the  shops  of  Abdulla  S/O  of  Sharfuddin,  Shahur,  Riyaz  all  Muslims  at  Bhaluan  Chouraha  under  Police  Station  Gagaha and the shops of Muslims named  Fakharuddin and Islam were also set afire  apart  from  Irshad  Tent  House  at  Jaitpur  Couraha under Sahajnawan Police Station  and  such  followers  also  destructed  and  destroyed the  Eidgaah situated in  village  Rudlapur  P.S.  Khorabar  and  Eidgaah  situated  in  village  Dumri  (Niwas)  P.S.  Sahajanawan,  and  Eidgaah  situated  in  village  Mustafabad  @  Mallaur  P.S.  Sahjanawan  and  the  Mosque  situated  in  village  Bhhopgarh  P.S.  Gola  District  Gorakhpur.  Tazias were not allowed to be  lifted at many places in Gorakhpur district  and  at  many  places  where  the  Tazia  procession  were  carried  out,  they  were  destructed  and  set  afire  there  by  doing  miscreant acts there.  The shops of Salim  S/O  Shaukat  in  village  Jaddupatti,  Ashiq  Band, Anwar barber, Hafizullah and Jabbar  in  village  Menhdeva  under  Police  Station  Sikrigunj  were  also  set  afire  under  the  same conspiracy.   These  miscreants  also  robbed and set afire the shop of Tajammul  Hussain in village Dhabra of Police Station  Sikrigunj.  In the same way, the shops of  Nadir, Ashiq Mukhtar were robbed and set  afire in Belghat and such miscreants also  attacked  the  mosque  situated  in  village  

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Bhainsa P.S.  Bansgaon and destroyed it’s  gate  and  also  destructed  shops  of  two  Muslims in the market.

7. That the followers of Aditya Nath Yogi  and  activists  –  miscreants  of  the  abovenamed organization robbed and set  afire the buses of the roadways by blocking  the roads and the government and private  other  vehicles  were  also  robbed  and  set  afir4e.  The conduction of roadways buses  in Gorakhpur and Basti  Division remained  effected during the period from 29.01.2007  to 5th February, 2007 and other adjoining  Division  also  remained  effected.   During  the period from 9th January to 31st January,  2007,  the  followers  and  activists  of  Yogi  Aditya Nath destroyed more than 22 buses  of the roadways on different places under  this  conspiracy  and  also  caused  loss  by  setting them afire,  in  which 14 roadways  buses belonged to Gorakhpur areas and 8  buses belonged to outer  areas.   On date  31st January,  2007  road  buses  in  the  Nichnaul depot in Maharajgunj district were  also  destructed  and  set  afire  by  the  followers of Yogi Aditya Nath.

8. That  Railways  was  disrupted  by  the  followers of  Yogi  Aditya Nath Hindu Yuva  Vahini, BJP and Vyapar Mandal and about  more than 14 trains were set afire causing  loss and the Yogi supported miscreants of  these  organizations  pelted  stones  and  destructed the office of the SDM situated in  Bansgaon  and  office  of  the  DM  at  Gorakhpur  under  the  criminal  conspiracy  and  flamboyant  speech  against  the  

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government  and  instigation  for  criminal  acts  by  the  persons  abovenamed  and  in  the  same  way  the  miscreants  of  these  organizations  robbed  and  set  afire  the  shops of Muslims in other Kasbas Khajani,  Kauriram, Bansgaon, etc. of the Gorakhpur  district.   In  Kasba  Khajani,  these  miscreants  entered  the  mosque  and  and  Madarsa Arabia Ahal-e-Sunnat and robbed  and destroyed the same and also robbed  and  set  afire  the  shops  of  15  Muslims,  whose details have been mentioned in the  petition  dated  5th July,  2007  written  by  Mohammad  Asad  Hayat  to  the  Senior  Superintendent  of  Police,  Gorakhpur  and  the vehicles of Muslims plying on the road  were  also  made targets.   In  Kasba Gola,  the  shops  of  Akhtar  Hussain  S/O  Muhhamad  Umar,  Gulab  Hussain  S/O  Ismail, Abrar S/O Sarfaraz, Aftab S/O Noor  Alam,  Feroz  and  Tahir  were  also  robbed  and  set  afire.   In  Kasba  Kauriram,  the  shops  of  Nabi  Muhammad,  Nizamuddin,  Majnu  and  Yusuf  were  also  set  afire.   In  Kasba Bansgaon,  the  shops of  Tazammul  Hussain  and  Dr.  Siraz  Ansari  were  also  robbed and burnt.  The Muslims aggrieved  by these incidents were not heard by the  Police.  Apart from this, the shops, houses  and  Tazias  of  Muslims  were  robbed  and  burnt  in  many  rural  areas  of  Gorakhpur  district.   All  these  incidents  have  been  published in Newspapers from 29th January,  2007  to  15th February,  2007.   All  these  criminal  acts  were  done  by  the  follower  activists of Yogi Aditya Nath connected to  Hindu Yuva Vahini, BJP and Vyapar Mandal  

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on  instigation  by  aforesaid  enraging  speech by Yogi Aditya Nath and under the  conspiracy  hatched  by  Yogi  Aditya  Nath  and other abovenamed persons.  

9. That  Yogi  Aditya  Nath  delivered  a  enraging speech addressing “Hindu Chetna  Rally”  in  Kasba  Kasaya  District  Padrauna  on 28th January, 2007 and asked the Hindus  that  they  shed  fear  of  death  from  their  hearts.   It  is  necessary  to  mention  here  that  in  Purvanchal,  Hindu  Yuva  Vahini  under  the leadership  of  Yogi  Aditya Nath  was  hatching  a  conspiracy  to  disrupt  communal harmony, to annoy Muslims and  to harm them since earlier times and was  looking for an appropriate situation for the  same and it’s activists were active for the  same.  This appropriate situation met them  in the background of murder of Rajkumar  Agrahari in Gorakhpur town in the night of  26/27th January,  2007.   The  activists  of  Hindu  Yuva  Vahini  and  BJP  were  jointly  holding  public  meetings  at  the  different  places  since  first  week  of  January  2007  itself  in  Kotwali  Padrauna  area  of  Kushinagar  district  and  were  raising  slogans  that  if  you  have  to  live  in  Purvanchal,  then you must have to chant  name  of  Yogi  and  whoever  chants  the  name  of  Ali,  he  will  be  beaten  in  every  street.  The office bearers and activists of  Hindu  Yuva  Vahini  were  delivering  communal speeches and were canvassing  that Muslims must be taught a lesson and  they have to be harmed to such an extent  that they do not dare raise their heads and  any of their religious ceremony has not to  

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be  allowed  to  be  completed.   In  this  respect, all such information are recorded  in  the  G.D.  of  Kotwali  Padrauna town on  different  dates  in  the  month  of  January,  2007.

10. That all the preparations to carry out  such wrongful acts and spread the same in  Gorakhpur Division and Basti Division had  been completed by Hindu Yuva Vahini, BJP  and Vyapar Mandal under the leadership of  Yogi Aditya Nath and the speech delivered  by  Yogi  Aditya  Nath  in  the  aforesaid  “Warning”  meeting  and  the  torch  procession  conducted  on  Gorakhpur  Railway Station in the night of dated 27th  January, Gorakhpur Railway Station in the  night  of  date  27th January,  2007 and the  “Hindu Chetna Rally” conducted in Kasaya  of district Kushinagar on 28th January, 2007  further  provoked  and  directed  their  activists  and  thereafter  Yogi  Aditya  Nath  got  himself  arrested  at  the  border  of  Gorakhpur  district  on  28th January,  2007  while  returning  from  Kasaya  under  conspiracy  and  it  was  canvassed  by  the  activists  of  Hindu  Yuva  Vahini,  BJP  and  Vyapar Mandal under conspiracy only that  the  administration  has  arrested  the  prophet  of  Hindu  Welfare,  hence  got  the  brawl spread in relation to this arrest the  background  background  of  the  public  provocation  on  account  of  aforesaid  speech.  And robbed, burnt and destroyed  and properties  of  Muslims,  their  religious  places,  epics,  emblems,  Tazias  and  government vehicles and buildings, offices  buses of roadways and railways and in this  

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sequence,  condemnable crimes killings of  Muslims and attempt to kill Muslims were  carried out.”

5. Another very vital fact, that requires to be noticed at this  

stage itself, is that on 26th January, 2007, Rajkumar Agrahari, a  

Hindu  boy  was  murdered  in  Gorakhpur,  which  resulted  in  

breaking out of communal violence in the city and imposition of  

curfew under Section 144 of the Code.  On 27th January, 2007 a  

condolence meeting for the murder of Raj Kumar was organised  

which  was  attended  by  many  persons  including  Anju  

Chaudhary,  the  Mayor  of  Gorakhpur  and  Yogi  Aditya  Nath,  

Member of Parliament from that constituency.  It appears from  

the record that the High Court had also passed some orders in  

regard to the investigation of the case and finally the police  

had registered a case under Section 302 of the Indian Penal  

Code, 1860 (for short ‘IPC’), and had even filed a charge sheet  

under Section 173 of the Code before the Court of competent  

jurisdiction against six unknown accused persons.   

6. Apart  from this  incident  and  before  the  public  meeting  

attended  by  above-stated  Anju  Chaudhary,  another  incident  

took place at the shop of one Hazrat S/o Bismilla under Police  

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Station Cantt.  In this incident, the shop of Hazarat was set on  

fire  at  about  6  p.m.  on  27th January,  2007  causing  heavy  

damage to the same.  In fact, as per the report lodged by him,  

he was working in that shop and owner of the shop was one  

Md.  Isa  Ansari.   According  to  him,  some  unknown  persons,  

claiming to be from Hindu Yuva Vahini, had set the shop on fire.  

He neither knew their names nor their addresses.  This report  

was sent by post and was, thus, received by the Police Station  

and registered as FIR No.145 of 2007 on 3rd February, 2007.  

The  police  had  registered  a  case  against  unknown  persons  

under Sections 147, 427, 436 and 506 IPC read with Section 23  

of the U.P. Gangsters and Activists Prevention Act and Section 7  

of the Criminal Law Amendment Act.  

7. The complaint application under Section 156 IPC was filed  

by Parvaz on 16th November, 2007, nearly 10 months after the  

date of occurrence.  This application, which was heard by the  

learned Chief Judicial Magistrate,  was rejected vide order dated  

29th July, 2008.  The learned Magistrate expressed the opinion  

that  since  Crime  Case  No.145  of  2007  had  already  been  

registered, as noticed above, there was no propriety to register  

an FIR again.  The intention of the legislature was to provide  

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speedy criminal law and justice to all.   Thus, there was no need  

to  conduct  fresh  investigation  by  another  person  merely  by  

lodging a fresh FIR.  The Court held that to pass such an order  

was not justifiable and rejected the application.  The thrust of  

the order of the learned Magistrate was primarily on this aspect  

of the case.

8. Aggrieved  from the order  dated  29th July,  2008,  Parvaz  

filed a revision petition before the High Court.  The High Court  

vide its  judgment  dated 26th September,  2008 set  aside the  

order of the learned Magistrate under revision and directed the  

Magistrate  to  pass  a  fresh  order  on  the  application  of  

respondent No.2.  While passing this order, the Court held as  

under :

“11. In addition to the aforesaid averments,  various  other  allegations  have  also  been  made  in  the  application  under  Section  156(3) Cr.P.C.  From all  these allegations,  prima  facie  cognizable  offences  of  very  serious nature requiring police investigation  are  disclosed.   Hence,  the  learned  CJM  Gorakhpur ought to have passed the order  in  present  case  for  registration  of  FIR  against  the  persons  named  in  the  application  under  Section  156(3)  Cr.P.C.  and its investigation by the police, but it is  very  unfortunate  that  due  to  lack  of  adequate  legal  knowledge,  without  going  into  the  allegations  made  in  that  

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application,  the  learned  CJM  has  rejected  the application merely on the ground that  in view of the FIR registered at case Crime  No.145 of 2007 at P.S. Cantt.,  there is no  justification  to  get  the  second  FIR  registered.  This view of the learned CJM is  wholly erroneous.  Annexure (iv) is the copy  of  the  FIR,  which  was  registered  at  Case  Crime  No.145  of  2007  at  P.S.  Cantt  Gorakhpur on the basis of the application of  Hazarat S/o Vismilla.  On perusal of this FIR,  it is revealed that the said FIR relates to the  incident, which had occurred on 27.01.2007  at about 6.00 p.m., in which damage was  caused  to  the  shop  of  the  complainant  Hazarat by some named persons of Hindu  Yuwa  Wahini.   That  FIR  was  lodged  regarding one incident only, whereas in the  application under Section 156(3) Cr.P.C.  a  number of incidents have been mentioned,  which occurred on different places affecting  different persons.  Therefore, it cannot be  said that the FIR registered at Case Crime  No.145  of  2007  covers  all  the  incidents  mentioned in the application under Section  156(3) Cr.P.C.  As such, there was no legal  bar in this case to get the First Information  Report  registered  on  the  basis  of  the  application  moved  by  the  applicant  revisionist under Section 156(3) Cr.P.C. and  its investigation by the police, because all  the allegations made in the said application  and  in  the  FIR  registered  at  Case  Crime  No.145 of 2007 are not the same.

12. Although, in view of law laid down by a  Division Bench of this Court in the case of  Sukhwasi Vs.  State of U.P. 2007 (59) ACC  739 in which Full Bench decision of the case  of Ram Babu Guta & Ors. Vs. State of U.P.  2001  (43)  ACC  50  has  been  relied  upon,  application  under  Section  156(3)  Cr.P.C.  can  be  treated  as  complaint,  but  on  the  

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basis  of  the  allegations  made  in  the  application under Section 156(3) Cr.P.C. in  the  present  case  prima  facie  cognizable  offences  of  very  serious  nature  requiring  police investigation are disclosed.  Hence,  treating  the  application  under  Section  156(3) Cr.P.C. as complaint in present case  would  not  be  legal  and  justified.   While  passing  order  for  treating  the  application  under Section 156(3) Cr.P.C. as complaint,  the following observations made by the Full  Bench of this Court in the case of Ram Babu  Gupta (supra) must be kept in mind by the  Magistrate/Judges:-

“However,  it  is  always  to  be  kept  in  mind that it is the primary duty of the  police to investigate in case involving  cognizable  offences  and  aggrieved  person cannot be forced to proceed in  the  manner  provided  by  Chapter  XV  and  to  produce  his  witnesses  at  his  cost of bring home the charge to the  accused.  It is the duty of the state to  provide  safeguards  to  the  life  and  property of a citizen.  If any intrusion  is  made by an offender,  it  is  for  the  State to set the law into motion and  come  to  the  aid  of  the  person  aggrieved.”

13. Therefore,, having regard to the afore  cited observations made by the Full Bench,  the  Magistrates/Judges  should  not  shirk  their  legal  responsibility  to  pass  an order  for  registration  of  the  FIR  and  its  investigation  by  the  police  on  the  applications under Section 156(3) Cr.P.C. in  the  cases  where  on  the  basis  of  the  averments made therein and the material,  if  any,  brought  on  record  in  support  thereof,  prima facie cognizable offence of  serious  nature  requiring  police  

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investigation is made out and in such cases  the  aggrieved  person  should  not  be  compelled  to  collect  and  produce  the  evidence  at  his  cost  to  bring  home  the  charges to the accused by passing an order  to  treat  the  application  under  Section  156(3) Cr.P.C. as complaint thereby forcing  the  aggrieved  person  to  proceed  in  the  manner provided by Chapter XV Cr.P.C.

XXX XXX XXX

19. Consequently, the revision is allowed.  The impugned order is hereby set aside the  Chief  Judicial  Magistrate  Gorakhpur  is  directed  to  pass  fresh  order  on  the  application dated 16.11.2007 moved by the  applicant-revisionist  Parvaz  Parwaz,  under  Section  156(3)  Cr.P.C.  and  it  must  be  ensured that after registration of the FIR on  the  basis  of  that  application,  proper  investigation is carried out.”

9. In  the  present  appeal  by  way  of  special  leave,  the  

appellant  Smt.  Anju  Chaudhary  challenges  the  legality  and  

correctness  of  the  order  of  the  High  Court  primarily  on  the  

following grounds :

(a) The order passed by learned CJM dated 29th July, 2008 did  

not suffer from any error of jurisdiction and, thus, the High  

Court could not have upset the said order in exercise of its  

revisional jurisdiction.

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(b) While making certain observations, the High Court, in the  

impugned order held that prima facie cognizable offences  

were made out and while virtually directing the learned  

Magistrate  to  get  an  FIR  registered,  has  foreclosed  the  

exercise of judicial  discretion by the learned Magistrate.  

As such, the order of the High Court is not sustainable.

(c) In law, there cannot be two FIRs registered in relation to  

the same occurrence or different events or incidents two  

or more but forming part of the same transaction.  The  

direction to register a second FIR, therefore, is contrary to  

law and the very spirit of Section 154 of the Code.

(d) The order of the High Court is in violation of the principles  

of natural justice inasmuch as the High Court neither gave  

any  notice  nor  heard  the  appellant  before  passing  the  

impugned order dated 26th September, 2008.  

10. Contra to the above submissions made by the appellant,  

the counsel appearing for the State as well as respondent No.2  

have supported the order of the High Court in law as well as  

with reference to the facts of the case in hand.  It is contended  

on their behalf that there were no two separate FIRs in relation  

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to the same offence or occurrence, but these FIRS related to  

two  different  incidents  which  is  permissible  in  law.   The  

appellant was not entitled to any hearing in law at the stage of  

filing the FIR, and in any case no direction has been made to  

register a case particularly against the appellant for any given  

offence.  Thus, the order of the High Court does not call for any  

interference.

11. Having noticed the contentions of the parties and in order  

to complete the factual matrix of the case, we may also notice  

at this stage that in furtherance to the order of the High Court  

dated 26th September, 2008, the learned CJM, vide order dated  

17th October, 2008 accepted the application of respondent No.2  

and directed the Police Station Cantt., Gorakhpur to register the  

case under appropriate sections and to ensure the investigation  

in terms of the order passed by the High Court.  A copy of the  

order  was  placed  before  this  Court  during  the  course  of  

hearing.

12. Since  all  these  contentions  are  inter-related  and  inter-

dependant, it will be appropriate for the Court to examine them  

collectively.  Of course, the foremost contention raised before  

us is as to whether it  is permissible to register two different  

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FIRs in law.  We may deal with the legal aspect of this issue first  

and then turn to the facts.   

13. Section 154 of the Code requires that every information  

relating  to  the  commission  of  a  cognizable  offence,  whether  

given orally  or  otherwise to  the officer  in-charge of  a  police  

station, has to be reduced into writing by or under the direction  

of such officer and  shall be signed by the person giving such  

information.  The substance thereof shall be entered in a book  

to be kept by such officer in such form as may be prescribed by  

the State Government in this behalf.

14. A  copy  of  the  information  so  recorded  under  Section  

154(1) has to be given to the informant free of cost.  In the  

event of  refusal  to  record such information,  the complainant  

can take recourse to the remedy available to him under Section  

154(3).   Thus,  there is  an obligation on the part  of  a  police  

officer  to  register  the  information  received  by  him  of  

commission  of  a  cognizable  offence.  The  two-fold  obligation  

upon such officer is that (a) he should receive such information  

and (b) record the same as prescribed.  The language of the  

section  imposes  such  imperative  obligation  upon the  officer.  

An investigating officer, an officer-in-charge of a police station  20

Page 21

can be directed to conduct an investigation in the area under  

his  jurisdiction  by  the  order  of  a  Magistrate  under  Section  

156(3) of the Code who is competent to take cognizance under  

Section 190.  Upon such order, the investigating officer shall  

conduct  investigation  in  accordance  with  the  provisions  of  

Section 156 of the Code.  The specified Magistrate, in terms of  

Section 190 of the Code, is entitled to take cognizance upon  

receiving a complaint of facts which constitute such offence;  

upon a police report of such facts; upon information received  

from any person other than a police officer, or upon his own  

knowledge, that such offence has been committed.

15. On the plain construction of the language and scheme of  

Sections 154, 156 and 190 of the Code, it cannot be construed  

or suggested that there can be more than one FIR about an  

occurrence.   However,  the  opening  words  of  Section  154  

suggest  that  every  information  relating  to  commission  of  a  

cognizable offence shall be reduced to writing by the officer in-

charge of a Police Station.  This implies that there has to be the  

first information report about an incident which constitutes a  

cognizable offence.  The purpose of registering an FIR is to set  

the  machinery  of  criminal  investigation  into  motion,  which  

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culminates with filing of the police report in terms of Section  

173(2) of the Code.  It will, thus, be appropriate to follow the  

settled principle that there cannot be two FIRs registered for  

the same offence.  However,  where the incident is separate;  

offences are similar or different, or even where the subsequent  

crime is of such magnitude that it does not fall within the ambit  

and scope of the FIR recorded first, then a second FIR could be  

registered.  The most important aspect is to examine the inbuilt  

safeguards provided by the legislature in the very language of  

Section  154  of  the  Code.    These  safeguards  can  be  safely  

deduced from the principle akin to double jeopardy, rule of fair  

investigation  and  further  to  prevent  abuse  of  power  by  the  

investigating authority of the police.   Therefore, second FIR for  

the  same  incident  cannot  be  registered. Of  course,  the  

Investigating Agency has no determinative right.  It is only a  

right  to  investigate in  accordance with  the provisions  of  the  

Code.   The filing of  report  upon completion of  investigation,  

either for cancellation or alleging commission of an offence, is a  

matter  which  once  filed  before  the  court  of  competent  

jurisdiction  attains  a  kind  of  finality  as  far  as  police  is  

concerned,  may  be  in  a  given  case,  subject  to  the  right  of  

further investigation but wherever the investigation has been  22

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completed and a person is  found to be  prima facie guilty of  

committing  an  offence  or  otherwise,  reexamination  by  the  

investigating agency on its own should not be permitted merely  

by registering another FIR with regard to the same offence.  If  

such protection is  not given to a suspect,  then possibility of  

abuse of  investigating powers by the Police cannot be ruled  

out.  It is with this intention in mind that such interpretation  

should be given to Section 154 of the Code, as it would not only  

further  the  object  of  law  but  even  that  of  just  and  fair  

investigation.  More so, in the backdrop of the settled canons of  

criminal jurisprudence, re-investigation or de novo investigation  

is beyond the competence of not only the investigating agency  

but even that of the learned Magistrate.  The courts have taken  

this view primarily for the reason that it would be opposed to  

the scheme of the Code and more particularly Section 167(2) of  

the Code.  [Ref. Rita Nag v. State of West Bengal [(2009) 9 SCC  

129] and Vinay Tyagi v.  Irshad Ali @ Deepak & Ors. (SLP (Crl)  

No.9185-9186 of 2009 of the same date).

16. It has to be examined on the merits of each case whether  

a subsequently registered FIR is a second FIR about the same  

incident or offence or is based upon distinct and different facts  

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and whether its scope of inquiry is entirely different or not.  It  

will  not  be  appropriate  for  the  Court  to  lay  down  one  

straightjacket formula uniformly applicable to all  cases.  This  

will  always be a mixed question of  law and facts depending  

upon the merits of a given case.  In the case of Ram Lal Narang  

v.  State (Delhi Administration) [(1979) 2 SCC 322], the Court  

was concerned with the registration of a second FIR in relation  

to the same facts but constituting different offences and where  

ambit  and  scope  of  the  investigation  was  entirely  different.  

Firstly, an FIR was registered and even the charge-sheet filed  

was primarily concerned with the offence of conspiracy to cheat  

and misappropriation by the two accused.  At that stage, the  

investigating agency was not aware of any conspiracy to send  

the pillars (case property) out of the country.  It was also not  

known that some other accused persons were parties to the  

conspiracy to obtain possession of the pillars from the court,  

which subsequently  surfaced in  London.   Earlier,  it  was only  

known to the Police that the pillars were stolen as the property  

within the meaning of Section 410 IPC and were in possession  

of the accused person (Narang brothers) in London.  The Court  

declined to grant relief  of  discharge to the petitioner in that  

case where the contention raised was that entire investigation  24

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in the FIR subsequently instituted was illegal  as the case on  

same facts was already pending before the courts at Ambala  

and courts in Delhi were acting without jurisdiction. The fresh  

facts came to light and the scope of investigation broadened by  

the facts which came to be disclosed subsequently during the  

investigation of the first FIR.  The comparison of the two FIRs  

has shown that the conspiracies were different. They were not  

identical  and  the  subject  matter  was  different.   The  Court  

observed that there was a statutory duty upon the Police to  

register  every information relating to cognizable offence and  

the  second  FIR  was  not  hit  by  the  principle  that  it  is  

impermissible  to  register  a  second FIR of  the same offence.  

The Court held as under :

“20.Anyone acquainted with the day-to-day  working of the criminal courts will be alive  to  the  practical  necessity  of  the  police  possessing  the  power  to  make  further  investigation  and  submit  a  supplemental  report.  It  is  in  the  interests  of  both  the  prosecution and the defence that the police  should  have  such  power.  It  is  easy  to  visualize a case where fresh material may  come  to  light  which  would  implicate  persons not previously accused or absolve  persons already accused. When it comes to  the notice of the investigating agency that  a person already accused of an offence has  a  good  alibi,  is  it  not  the  duty  of  that  agency  to  investigate  the  genuineness  of  

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the plea of alibi and submit a report to the  Magistrate?  After  all,  the  investigating  agency  has  greater  resources  at  its  command  than  a  private  individual.  Similarly, where the involvement of persons  who are not already accused comes to the  notice  of  the  investigating  agency,  the  investigating agency cannot keep quiet and  refuse to investigate the fresh information.  It is their duty to investigate and submit a  report  to  the  Magistrate  upon  the  involvement of the other persons. In either  case, it is for the Magistrate to decide upon  his future course of action depending upon  the stage at which the case is before him. If  he  has  already  taken  cognizance  of  the  offence,  but  has  not  proceeded  with  the  enquiry or trial, he may direct the issue of  process to persons freshly discovered to be  involved and deal with all the accused in a  single enquiry or trial. If the case of which  he  has  previously  taken  cognizance  has  already proceeded to some extent, he may  take  fresh  cognizance  of  the  offence  disclosed  against  the  newly  involved  accused  and  proceed  with  the  case  as  a  separate case. What action a Magistrate is  to take in accordance with the provisions of  the CrPC in such situations is a matter best  left to the discretion of the Magistrate. The  criticism that a further investigation by the  police  would  trench  upon  the  proceeding  before the court is really not of very great  substance, since whatever the police may  do, the final discretion in regard to further  action is with the Magistrate. That the final  word  is  with  the  Magistrate  is  sufficient  safeguard  against  any  excessive  use  or  abuse of the power of the police to make  further  investigation.  We  should  not,  however,  be  understood  to  say  that  the  police  should  ignore  the  pendency  of  a  proceeding before a court and investigate  

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every fresh fact that comes to light as if no  cognizance had been taken by the Court of  any offence. We think that in the interests  of the independence of the magistracy and  the judiciary, in the interests of the purity  of the administration of criminal justice and  in the interests of the comity of the various  agencies  and  institutions  entrusted  with  different  stages  of  such  administration,  it  would ordinarily be desirable that the police  should  inform  the  court  and  seek  formal  permission  to  make  further  investigation  when fresh facts come to light.

21. As observed by us earlier, there was no  provision  in  the  CrPC,  1898  which,  expressly  or  by  necessary  implication,  barred  the  right  of  the  police  to  further  investigate  after  cognizance  of  the  case  had been taken by the Magistrate. Neither  Section 173 nor Section 190 lead us to hold  that  the  power  of  the  police  to  further  investigate  was  exhausted  by  the  Magistrate  taking  cognizance  of  the  offence.  Practice,  convenience  and  preponderance  of  authority,  permitted  repeated  investigations  on  discovery  of  fresh  facts.  In  our  view,  notwithstanding  that a Magistrate had taken cognizance of  the offence upon a police report submitted  under  Section 173 of  the 1898 Code,  the  right of the police to further investigate was  not exhausted and the police could exercise  such right as often as necessary when fresh  information came to light. Where the police  desired to make a further investigation, the  police  could  express  their  regard  and  respect for the court by seeking its formal  permission to make further investigation.

22. As in the present case, occasions may  arise when a second investigation started  independently  of  the  first  may  disclose  a  

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wide  range  of  offences  including  those  covered  by  the  first  investigation.  Where  the  report  of  the  second  investigation  is  submitted  to  a  Magistrate  other  than the  Magistrate  who  has  already  taken  cognizance of the first case, it is up to the  prosecuting  agency  or  the  accused  concerned  to  take  necessary  action  by  moving  the  appropriate  superior  court  to  have  the  two  cases  tried  together.  The  Magistrates  themselves  may  take  action  suo motu. In the present case, there is no  problem  since  the  earlier  case  has  since  been withdrawn by the prosecuting agency.  It was submitted to us that the submission  of a charge-sheet to the Delhi court and the  withdrawal of the case in the Ambala court  amounted to an abuse of the process of the  court. We do not think that the prosecution  acted  with  any  oblique  motive.  In  the  charge-sheet filed in the Delhi court, it was  expressly  mentioned  that  Mehra  was  already facing trial in the Ambala Court and  he was, therefore, not being sent for trial.  In  the  application  made  to  the  Ambala  Court  under  Section  494  CrPC,  it  was  expressly mentioned that a case had been  filed in the Delhi Court against Mehra and  others and, therefore, it was not necessary  to  prosecute  Mehra  in  the  Ambala  court.  The  Court  granted  its  permission  for  the  withdrawal  of  the  case.  Though  the  investigating  agency  would  have  done  better  if  it  had  informed  the  Ambala  Magistrate  and  sought  his  formal  permission for the second investigation, we  are satisfied that the investigating agency  did not act out of any malice. We are also  satisfied that there has been no illegality.  Both  the  appeals  are,  therefore,  dismissed.”

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17. In the case of  M. Krishna v.  State of Karnataka [(1999) 3  

SCC 247], this Court took the view that even where the article  

of  charge  was  similar  but  for  a  different  period,  there  was  

nothing in the Code to debar registration of the second FIR.  The  

Court opined that the FIR was registered for an offence under  

Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act  

related to the period 1.8.1978 to 1.4.1989 and the investigation  

culminated into filing of a report which was accepted by the  

Court.  The second FIR and subsequent proceedings related to a  

later period which was 1st August, 1978 to 25th July, 1978 under  

similar charges.   It was held that there was no provision which  

debar the filing of a subsequent FIR.

18. In the case of T.T. Antony v. State of Kerala [(2001) 6 SCC  

181], the Court explained that an information given under sub-

Section (1) of Section 154 of the Code is commonly known as  

the First Information Report (FIR).  Though this term is not used  

in  the  Code,  it  is  a  very  important  document.   The  Court  

concluded that second FIR for the same offence or occurrence  

giving  rise  to  one  or  more  cognizable  offences  was  not  

permissible.  In this case, the Court discussed the judgments in  

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Ram Lal Narang (supra) and M. Krishna (supra) in some detail,  

and while quashing the subsequent FIR held as under :

“23. The right of the police to investigate  into a cognizable offence is a statutory right  over which the court does not possess any  supervisory  jurisdiction  under  CrPC.  In  Emperor v.  Khwaja Nazir Ahmad the Privy  Council  spelt  out  the  power  of  the  investigation of the police, as follows:  

“In India, as has been shown, there is  a  statutory  right  on  the  part  of  the  police  to  investigate  the  circumstances  of  an  alleged  cognizable crime without requiring any  authority from the judicial authorities,  and it would, as Their Lordships think,  be an unfortunate result if it should be  held  possible  to  interfere  with  those  statutory rights by an exercise of the  inherent jurisdiction of the court.”

24.  This  plenary  power  of  the  police  to  investigate  a  cognizable  offence  is,  however,  not  unlimited.  It  is  subject  to  certain  well-recognised limitations.  One of  them, is pointed out by the Privy Council,  thus:  

“[I]f  no  cognizable  offence  is  disclosed, and still more if no offence  of  any  kind  is  disclosed,  the  police  would have no authority to undertake  an investigation….”

25.  Where  the  police  transgresses  its  statutory  power  of  investigation  the  High  Court  under  Section  482  CrPC  or  Articles  226/227 of the Constitution and this Court  in  an  appropriate  case  can  interdict  the  investigation  to  prevent  abuse  of  the  

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process of the court or otherwise to secure  the ends of justice.

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35.  For  the  aforementioned  reasons,  the  registration of the second FIR under Section  154 CrPC on the basis of the letter of the  Director General of Police as Crime No. 268  of 1997 of Kuthuparamba Police Station is  not  valid  and  consequently  the  investigation  made pursuant  thereto  is  of  no legal consequence, they are accordingly  quashed. We hasten to add that this does  not preclude the investigating agency from  seeking leave of the Court in Crimes Nos.  353  and  354  of  1994  for  making  further  investigations and filing a further report or  reports  under  Section  173(8)  CrPC  before  the competent Magistrate in the said cases.  In  this  view  of  the  matter,  we  are  not  inclined to  interfere with the judgment  of  the High Court under challenge insofar as it  relates  to  quashing  of  Crime  No.  268  of  1997  of  Kuthuparamba  Police  Station  against the ASP (R.A. Chandrasekhar); in all  other  aspects  the  impugned  judgment  of  the High Court shall stand set aside.”

19. The judgment of this Court in T.T. Antony (supra) came to  

be further explained and clarified by a three Judge Bench of this  

Court in the case of Upkar Singh v. Ved Prakash [(2004) 13 SCC  

292], wherein the Court stated as under :

“17. It is clear from the words emphasised  hereinabove  in  the  above  quotation,  this  Court in the case of T.T. Antony v. State of  Kerala has not excluded the registration of  

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a complaint in the nature of a counter-case  from  the  purview  of  the  Code.  In  our  opinion,  this  Court  in  that  case  only  held  that  any  further  complaint  by  the  same  complainant  or  others  against  the  same  accused, subsequent to the registration of a  case, is prohibited 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. This  Court  in  Kari  Choudhary v.  Sita  Devi discussing this aspect of law held:

“11.  Learned  counsel  adopted  an  alternative  contention  that  once  the  proceedings  initiated  under  FIR  No.  135 ended in a final report the police  had no authority to register a second  FIR and number it as FIR No. 208. Of  course the legal position is that there  cannot be two FIRs against the  same  accused in respect of the same case.   But  when there  are  rival  versions  in   respect  of  the  same  episode,  they  would normally take the shape of two   different FIRs and investigation can be  carried on under both of them by the   same investigating agency. Even that  apart,  the  report  submitted  to  the  court styling it as FIR No. 208 of 1998  need be considered as an information  submitted to the court  regarding the  new  discovery  made  by  the  police  during investigation that  persons not  

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named  in  FIR  No.  135  are  the  real  culprits.  To  quash  the  said  proceedings  merely  on  the  ground  that final report had been laid in FIR  No.  135  is,  to  say  the  least,  too  technical. The ultimate object of every  investigation is to find out whether the  offences alleged have been committed  and, if so, who have committed it.”

(emphasis supplied)

XXX XXX XXX

23. Be that as it may, if the law laid down  by this Court in  T.T. Antony case is to be  accepted  as  holding  that  a  second  complaint  in  regard  to  the  same incident  filed  as  a  counter-complaint  is  prohibited  under the Code then, in our opinion, such  conclusion  would  lead  to  serious  consequences.  This will  be clear from the  hypothetical  example  given  hereinbelow  i.e. if in regard to a crime committed by the  real accused he takes the first opportunity  to lodge a false complaint and the same is  registered by the jurisdictional police then  the aggrieved victim of such crime will be  precluded from lodging a complaint giving  his  version  of  the  incident  in  question,  consequently  he  will  be  deprived  of  his  legitimated right to bring the real accused  to book. This cannot be the purport of the  Code.

24. We have already noticed that  in  T.T.  Antony case this Court did not consider the  legal  right  of  an  aggrieved  person  to  file  counterclaim,  on  the  contrary  from  the  observations found in the said judgment it  clearly  indicates  that  filing  a  counter- complaint is permissible.

25. In the instant case, it is seen in regard  to the incident which took place on 20-5-

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1995,  the  appellant  and  the  first  respondent  herein  have  lodged  separate  complaints  giving  different  versions  but  while the complaint of the respondent was  registered  by  the  police  concerned,  the  complaint  of  the  appellant  was  not  so  registered, hence on his prayer the learned  Magistrate  was  justified  in  directing  the  police  concerned  to  register  a  case  and  investigate  the  same and  report  back.  In  our  opinion,  both  the  learned  Additional  Sessions Judge and the High Court erred in  coming to the conclusion that the same is  hit  by  Section  161  or  162  of  the  Code  which,  in  our  considered  opinion,  has  absolutely  no  bearing  on  the  question  involved.  Section 161 or  162 of  the Code  does not refer to registration of a case, it  only speaks of a statement to be recorded  by  the  police  in  the  course  of  the  investigation and its evidentiary value.”

20. Somewhat similar view was taken by a Bench of this Court  

in  the  case  of  Rameshchandra  Nandlal  Parikh v.  State  of  

Gujarat [(2006) 1 SCC 732], wherein the Court held that the  

subsequent FIRs cannot be prohibited on the ground that some  

other  FIR has been filed against  the petitioner  in  respect  of  

other allegations filed against the petitioner.

21. This Court also had the occasion to deal with the situation  

where the first FIR was a cryptic one and later on, upon receipt  

of a proper information, another FIR came to be recorded which  

was a detailed one.  In this case, the court took the view that  34

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no exception could be taken to the same being treated as an  

FIR.  In the case of Vikram  v.  State of Maharashtra (2007) 12  

SCC 332, the Court held that it was not impermissible in law to  

treat the subsequent information report as the First Information  

Report and act thereupon.  In the case of  Tapinder Singh v.   

State of Punjab [(1970) 2 SCC 113] also, this Court examined  

the  question  as  to  whether  cryptic,  anonymous  and  oral  

messages, which do not clearly specify the cognizable offence,  

can  be  treated  as  FIR,  and  answered  the  question  in  the  

negative.  

22. In  matters of  complaints,  the Court  in  the case of  Shiv  

Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed  

the view that the law does not prohibit filing or entertaining of a  

second complaint even on the same facts,  provided that the  

earlier complaint has been decided on the basis of insufficient  

material or has been passed without understanding the nature  

of  the  complaint  or  where  the  complete  facts  could  not  be  

placed before  the  court  and the  applicant  came to  know of  

certain facts after the disposal of the first complaint.  The Court  

applied  the  test  of  full  consideration  of  the  complaints  on  

merits.  In paragraph 18, the Court held as under: -

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“18.  Thus, it is evident that the law does not  prohibit  filing  or  entertaining  of  the  second  complaint even on the same facts provided the  earlier complaint has been decided on the basis  of  insufficient  material  or  the order  has been  passed without understanding the nature of the  complaint or  the complete facts could not  be  placed  before  the  court  or  where  the  complainant came to know certain facts after  disposal of the first complaint which could have  tilted the balance in his favour.  However,  the  second  complaint  would  not  be  maintainable  wherein  the  earlier  complaint  has  been  disposed of on full consideration of the case of  the complainant on merit.”

23. The  First  Information  Report  is  a  very  important  

document, besides that it sets the machinery of criminal law in  

motion.   It is a very material document on which the entire  

case  of  the  prosecution  is  built.  Upon  registration  of  FIR,  

beginning  of   investigation  in  a  case,  collection  of  evidence  

during investigation and formation of the final  opinion is  the  

sequence which results in filing of a report under Section 173 of  

the  Code.   The  possibility  that  more  than  one  piece  of  

information is given to the police officer in charge of a police  

station, in respect of the same incident involving one or more  

than  one  cognizable  offences,  cannot  be  ruled  out.   Other  

materials and information given to or received otherwise by the  

investigating  officer  would  be  statements  covered  under  36

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Section 162 of the Code.   The Court in order to examine the  

impact  of  one or  more FIRs  has to  rationalise  the facts  and  

circumstances  of  each  case  and  then  apply  the  test  of  

‘sameness’ to find out whether both FIRs relate to the same  

incident and to the same occurrence, are in regard to incidents  

which are two or more parts of the same transaction or relate  

completely to two distinct occurrences.   If the answer falls in  

the first category, the second FIR may be liable to be quashed.  

However, in case the contrary is proved, whether the version of  

the  second  FIR  is  different  and  they  are  in  respect  of  two  

different incidents/crimes, the second FIR is permissible,  This is  

the view expressed by this Court in the case of Babu Babubhai  

v. State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment  

clearly spells out the distinction between two FIRs relating to  

the same incident and two FIRs relating to different incident or  

occurrences of the same incident etc.

24. To illustrate such a situation, one can give an example of  

the same group of people committing theft in a similar manner  

in different localities falling under different jurisdictions.  Even if  

the incidents were committed in close proximity of time, there  

could be separate FIRs and institution of even one stating that  

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a number of thefts had been committed, would not debar the  

registration  of  another  FIR.    Similarly,  riots  may  break  out  

because of the same event but in different areas and between  

different  people.    The  registration  of  a  primary  FIR  which  

triggered the riots would not debar registration of subsequent  

FIRs in different areas.   However, to the contra, for the same  

event and offences against the same people, there cannot be a  

second FIR.  This Court has consistently taken this view and  

even in the case of  Chirra Shivraj v. State of Andhra Pradesh  

[(2010) 14 SCC 444], the Court took the view that there cannot  

be  a  second  FIR  in  respect  of  same  offence/event  because  

whenever  any  further  information  is  received  by  the  

investigating  agency,  it  is  always  in  furtherance  of  the  First  

Information Report.

25. Now, we should examine the facts of the present case in  

light of the principles stated supra.   The complaint/application  

under Section 156(3) filed by respondent No. 2 was founded on  

the condolence meeting which was attended by a large number  

of  persons  including  the  persons  named  in  the  complaint.  

According  to  respondent  No.  2,  named  persons  had  given  

speeches which were communal, provoking and were creating  

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disharmony between the communities, and encouraging people  

to  commit  criminal  offences  rather  than  to  follow  the  due  

process of law.   The complaint of respondent No. 2 did not  

relate to  any event prior  to  the holding of  the meeting and  

participation of the stated persons.   This complaint was of a  

general  nature  and  related  to  various  communal  riots  that  

occurred subsequent to and as a result of the meeting.  Thus, it  

related to a different case, grievance and alleged commission  

of offences at the time and subsequent to the holding of the  

meeting.    

26. The First Information Report 145/2007 lodged by Hazrat  

son of Bismillah related to burning of a shop prior to holding of  

a meeting.  He categorically stated that he did not know the  

persons or names of the perpetrators who attacked the shop  

where he was working.   This incident occurred at 6 p.m. as per  

the records while the meeting itself, as per respondent No. 2  

was held after 8 p.m., though on the same date.   His report  

clearly  states  that  when he was going back to  his  house at  

about 8.30 p.m., he stopped at the place where the meeting  

was being held.    The FIR registered by Hazrat  was against  

unknown  persons  and  related  to  a  particular  event  and  

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commission of a particular crime.   There was no question of  

any  provocation,  conspiracy  or  attempt  by  the  persons  

premeditatedly committing the offences which they committed.

27. As per the FIR, it was an offence committed at random by  

some unknown  persons.    The  registration  of  such  FIR  was  

neither intended to be nor was it in fact in relation to a matter  

of larger investigation, or commission of offences, as alleged by  

the respondent no.2.

28. Even  the  offences  which  are  stated  to  have  been  

committed, and for which the two FIRs were registered in these  

respective cases were different and distinct.   In the complaint  

filed by Parvez Parwaz, which was registered as a FIR, names of  

the persons were mentioned and a general investigation was  

called for, while FIR 145/2007 registered by Hazrat, was against  

unknown persons for damage of his property, which was for a  

specific offence, without any other complaint or allegation of  

any communal instigation or riot.   In other words, these were  

two  different  FIRs  relatable  to  different  occurrences,  

investigation of one was no way dependent upon the other and  

they are neither inter-linked nor inter-dependent.   They were  

lodged by different persons in relation to occurrences which are  40

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alleged to  have  occurred  at  different  points  of  time against  

different  people and for  different  offences.    Requirement of  

proof  in  both  cases  was  completely  distinct  and  different.  

Thus, there was no similarity and the test of similarity would  

not  be  satisfied  in  the  present  case.    Thus,  we  have  no  

hesitation  in  coming  to  the  conclusion  that  lodging  of  the  

subsequent FIR was not a second FIR for the same occurrence  

as stated in FIR 145/2007, and thus, could be treated as a First  

Information Report  for  all  purposes including investigation in  

terms of the provisions of the Code.   It was not in the form of a  

statement under Section 162 of the Code.      

Is an accused entitled to hearing pre-registration of an  

FIR?    

29. Section 154 of the Code places an unequivocal duty upon  

the police officer in charge of a police station to register FIR  

upon receipt of the information that a cognizable offence has  

been committed.    It  hardly gives any discretion to the said  

police officer.   The genesis of this provision in our country in  

this regard is that he must register the FIR and proceed with  

the investigation forthwith.   While the position of law cannot be  

dispelled in  view of  the three Judge Bench Judgment  of  this  

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Court in State of Uttar Pradesh v. Bhagwant Kishore Joshi [AIR  

1964 SC 221], a limited discretion is vested in the investigating  

officer to conduct a preliminary inquiry pre-registration of a FIR  

as  there  is  absence  of  any  specific  prohibition  in  the  Code,  

express or implied.  The subsequent judgments of this Court  

have clearly stated the proposition that such discretion hardly  

exists.    In  fact  the view taken is  that  he is  duty  bound to  

register  an FIR.   Then the question that  arises  is  whether  a  

suspect is entitled to any pre-registration hearing or any such  

right is vested in the suspect.

30. The rule of  audi alteram partem is subject to exceptions.  

Such exceptions may be provided by law or by such necessary  

implications  where no other  interpretation is  possible.   Thus  

rule of natural justice has an application, both under the civil  

and criminal jurisprudence.  The laws like detention and others,  

specifically provide for post-detention hearing and it is a settled  

principle of law that application of this doctrine can be excluded  

by exercise of legislative powers which shall withstand judicial  

scrutiny.  The purpose of the Criminal Procedure Code and the  

Indian Penal Code is to effectively execute administration of the  

criminal justice system and protect society from perpetrators of  

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crime.  It has a twin purpose; firstly to adequately punish the  

offender  in  accordance  with  law  and  secondly  to  ensure  

prevention  of  crime.  On  examination,  the  scheme  of  the  

Criminal  Procedure  Code  does  not  provide  for  any  right  of  

hearing  at  the  time  of  registration  of  the  First  Information  

Report.   As  already  noticed,  the  registration  forthwith  of  a  

cognizable offence is the statutory duty of a police officer in  

charge of the police station.  The very purpose of fair and just  

investigation shall stand frustrated if pre-registration hearing is  

required to be granted to a suspect.  It is not that the liberty of  

an  individual  is  being  taken  away  or  is  being  adversely  

affected, except by the due process of law.  Where the Officer  

In-charge  of  a  police  station  is  informed  of  a  heinous  or  

cognizable  offence,  it  will  completely destroy the purpose of  

proper and fair  investigation if  the suspect is  required to be  

granted a hearing at that stage and is not subjected to custody  

in  accordance  with  law.   There  would  be  the  pre-dominant  

possibility of a suspect escaping the process of law.  The entire  

scheme  of  the  Code  unambiguously  supports  the  theory  of  

exclusion  of  audi  alteram partem pre-registration  of  an  FIR.  

Upon  registration  of  an  FIR,  a  person  is  entitled  to  take  

recourse to the various provisions of bail and anticipatory bail  43

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to claim his liberty in accordance with law. It cannot be said to  

be  a  violation  of  the  principles  of  natural  justice  for  two  

different reasons.  Firstly, the Code does not provide for any  

such  right  at  that  stage.   Secondly,  the  absence  of  such  a  

provision  clearly  demonstrates  the  legislative  intent  to  the  

contrary and thus necessarily implies exclusion of hearing at  

that stage.  This Court in the case of  Union of India  v.  W.N.   

Chadha  (1993)  Suppl.  (4)  SCC  260  clearly  spelled  out  this  

principle in paragraph 98 of the judgment that reads as under:

“98. If  prior  notice  and  an  opportunity  of  hearing are to be given to an accused in every  criminal case before taking any action against  him,  such  a  procedure  would  frustrate  the  proceedings,  obstruct  the  taking  of  prompt  action  as  law  demands,  defeat  the  ends  of  justice and make the provisions of law relating  to  the  investigation  lifeless,  absurd  and  self- defeating. Further, the scheme of the relevant  statutory provisions relating to the procedure of  investigation does not attract such a course in  the absence of any statutory obligation to the  contrary.”

31. In  the  case  of  Samaj  Parivartan  Samuday  v.   State of   

Karnataka (2012) 7 SCC 407, a three-Judge Bench of this Court  

while dealing with the right of hearing to a person termed as  

‘suspect’  or  ‘likely  offender’  in  the  report  of  the  CEC  

observed  that  there  was  no  right  of  hearing.   Though  the  44

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suspects  were  already  interveners  in  the  writ  petition,  they  

were heard.    Stating the law in regard to the right of hearing,  

the Court held as under :

“50.   There is  no provision in CrPC where an  investigating agency must provide a hearing to  the affected party before registering an FIR or  even before carrying on investigation prior  to  registration of case against the suspect. CBI, as  already  noticed,  may  even  conduct  pre- registration  inquiry  for  which  notice  is  not  contemplated under the provisions of the Code,  the  Police  Manual  or  even  as  per  the  precedents laid down by this Court. It is only in  those cases where the Court directs initiation of  investigation  by  a  specialised  agency  or  transfer  investigation  to  such  agency  from  another  agency  that  the  Court  may,  in  its  discretion,  grant  hearing  to  the  suspect  or  affected parties.  However,  that also is  not an  absolute rule of law and is primarily a matter in  the  judicial  discretion  of  the  Court.  This  question is of no relevance to the present case  as we have already heard the interveners."

32. While  examining  the  above-stated  principles  in  

conjunction with the scheme of the Code, particularly Section  

154 and 156(3) of the Code, it is clear that the law does not  

contemplate grant of any personal hearing to a suspect who  

attains the status of an accused only when a case is registered  

for committing a particular offence or the report under Section  

173 of the Code is filed terming the suspect an accused that his  

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rights are affected in terms of the Code.  Absence of specific  

provision requiring grant of hearing to a suspect and the fact  

that the very purpose and object of fair investigation is bound  

to  be  adversely  affected  if  hearing  is  insisted  upon  at  that  

stage, clearly supports the view that hearing is not any right of  

any suspect at that stage.

33. Even in the cases where report under Section 173(2) of  

the  Code  is  filed  in  the  Court  and  investigation  records  the  

name of a person in column (2), or even does not name the  

person as an accused at all, the Court in exercise of its powers  

vested  under  Section  319  can  summon  the  person  as  an  

accused and even at that stage of summoning, no hearing is  

contemplated under the law.

34. Of course, situation will be different where the complaint  

or  an  application  is  directed  against  a  particular  person  for  

specific  offence  and  the  Court  under  Section  156  dismisses  

such an application.  In that case, the higher court may have to  

grant hearing to the suspect before it directs registration of a  

case  against  the  suspect  for  a  specific  offence.   We  must  

hasten to  clarify  that  there  is  no absolute indefeasible  right  

vested in a suspect and this would have to be examined in the  46

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facts and circumstances of a given case.   But one aspect is  

clear  that  at  the stage of  registration of  a  FIR or  passing a  

direction under Section 156(3), the law does not contemplate  

grant of any hearing to a suspect.   Coming to the facts of the  

present  case,  the  complaint  under  Section  156  had  named  

certain persons, but it had also referred to a number of other  

persons  and  the  investigation  prayed  for  was  of  a  generic  

nature and not against a particular person for commission of  

any  specified  offence.   The  substance  and  nature  of  the  

allegations made in the complaint were such that it  was not  

possible to state with certainty as to how the offences were  

committed and by whom.   Thus, the Court was called upon to  

pass  an  order  directing  general  investigation  of  very  wide  

scope. It was to be investigated, as to who besides the named  

persons  gave speeches,  incited  the  public  at  large,  what  its  

impact  was  on  the  violence  as  alleged  and  who  were  the  

persons  who  had  participated  in  the  alleged  communal  

violence.  Thus, it was not a case where one or more persons  

committed  the  murder  of  someone  and  clearly  fell  under  

Section 302 IPC.   The merit of the case was not disclosed by  

the learned Magistrate while passing the order dated 29th July,  

2008  under  Section  156(3)  of  the  Code.  The  Court  did  not  47

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analyze  at  all  the  ingredients  of  an  offence,  participation  of  

persons and their other effects.  The court primarily proceeded  

on  a  legal  issue  without  reference  to  the  facts  of  the  case  

stating  that  since  one  FIR  had  been  recorded  i.e.  FIR  No.  

145/2007,  it  was not  permissible  to  register  second FIR  and  

direct investigation thereof.   This  view,  as already discussed  

above was, in fact and in law, not sustainable. The Court had  

not recorded any finding in favour of the appellant to the effect  

that she was not present, she had not participated or that she  

was in no way connected with communal violence. We must not  

be understood to state that the appellant was involved in any  

manner in the commission of the said crime.  This has to be  

investigated as directed by the court in accordance with law  

and that too without prejudice to the rights and contentions of  

the appellant.   The grievance of non-grant of hearing in any  

case loses its significance as we have heard the appellant at  

some length and have dealt with the contentions raised before  

us.   In  the  facts  of  the  present  case,  thus,  no  prejudice  is  

caused to the appellant.

Power of the Magistrate under Section 156(3)

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35. Investigation  into  commission  of  a  crime  can  be  

commenced by two different  modes.   First,  where the police  

officer registers an FIR in relation to commission of a cognizable  

offence and commences investigation in terms of Chapter XII of  

the Code,  the other is  when a Magistrate competent to take  

cognizance in terms of Section 190 may order an investigation  

into commission of a crime as per the provisions of that Chapter  

XIV.    Section 156 primarily deals with the powers of a police  

office to investigate a cognizable case.   While dealing with the  

application  or  passing  an  order  under  Section  156(3),  the  

Magistrate does not take cognizance of an offence.   When the  

Magistrate had applied his mind only for order an investigation  

under Section 156(3) of the Code or issued a warrant for the  

said purpose, he is not said to have taken cognizance.   It is an  

order in the nature of a preemptory reminder or intimation to  

the  police  to  exercise  its  primary  duty  and  power  of  

investigation in terms of Section 151 of the Code.   Such an  

investigation  embraces  the  continuity  of  the  process  which  

begins with collection of evidence under Section 156 and ends  

with the final report either under Section 159 or submission of  

chargesheet under Section 173 of the Code. Refer Mona Pawar  

v. High Court of Allahabad [2011) 3 SCC 496].  In the case of  49

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Dilawar Singh v. State of Delhi [2007) 9 SCR 695], this Court as  

well stated the principle that investigation begin in furtherance  

to an order under Section 156(3) is not anyway different from  

the kind of investigation commenced in terms of Section 156(1).  

They both terminate with filing of a report under Section 173 of  

the Code.   The Court signified the point that when a Magistrate  

orders investigation under Chapter XII he does so before taking  

cognizance of an offence.   The court in paragraph 17 of the  

judgment held as under:-

“The  clear  position  therefore  is  that  any  Judicial  Magistrate,  before  taking  cognizance  of  the  offence,  can  order  investigation  under  Section  156(3)  of  the  Code. If he does so, he is not to examine  the complainant  on oath because he was  not  taking  cognizance  of  any  offence  therein.  For  the  purpose  of  enabling  the  police to start investigation it is open to the  Magistrate to direct the police to register an  FIR.  There  is  nothing  illegal  in  doing  so.  After all registration of an FIR involves only  the  process  of  entering  the  substance  of  the information relating to the commission  of the cognizable offence in a book kept by  the officer in charge of the police station as  indicated in Section 154 of the Code. Even  if  a  Magistrate  does  not  say  in  so  many  words  while  directing  investigation  under  Section  156(3)  of  the  Code  that  an  FIR  should be registered, it  is the duty of the  officer  in  charge  of  the  police  station  to  register  the  FIR  regarding  the  cognizable  offence  disclosed  by  the  complainant  

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because  that  police  officer  could  take  further steps contemplated in Chapter XII of  the Code only thereafter.”

36. Caution in this process had been introduced by this Court  

vide its  judgment in the case of  Tula Ram & Ors.  v.  Kishore  

Singh [1977) 4 SCC 459] where it was held that the Magistrate  

can order the police to investigate the complaint, but it has no  

power to compel the police to submit a charge sheet on a final  

report being submitted by the police.  

37. Still another situation that can possibly arise is that the  

Magistrate is competent to treat even a complaint termed as an  

application and pass orders under Section 156(3), but where it  

takes cognizance, there it would have to be treated as a regular  

complaint  to  be  tried  in  accordance  with  the  provisions  of  

Section  200  onwards  falling  under  Chapter  XV  of  the  Code.  

There also the Magistrate is  vested with the power to direct  

investigation to be made by a police officer or by such other  

person as he thinks fit for the purposes of deciding whether or  

not  there  is  sufficient  ground for  proceeding.   This  power  is  

restricted and is not as wide as the power vested under Section  

156(3) of the Code.   The power of the Magistrate under Section  

156(3) of the Code to order investigation by the police have not  51

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been touched or affected by Section 202 because these powers  

are exercised even before the cognizance is  taken.  In other  

words, Section 202 would apply only to cases where Magistrate  

has  taken  cognizance  and  chooses  to  enquire  into  the  

complaint  either  himself  or  through  any  other  agency.   But  

there  may  be  circumstances  where  the  Magistrate,  before  

taking cognizance of the case himself, chooses to order a pure  

and  simple  investigation  under  Section  156(3)  of  the  Code.  

These cases would fall in different class.   This view was also  

taken  by  a  Bench  of  this  Court  in  the  case  of  Rameshbhai  

Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185].   The  

distinction  between  these  two  powers  had  also  been  finally  

stated in  the  judgment  of  this  Court  in  the  case  of  Srinivas  

Gundluri  &  Ors.  v.  SEPCO  Electric  Power  Construction   

Corporation & Ors. [(2010) 8 SCC 206] where the Court stated  

that  to  proceed  under  Section  156(3)  of  the  Code,  what  is  

required is a bare reading of the complaint and if it discloses a  

cognizable offence, then the Magistrate instead of applying his  

mind  to  the  complaint  for  deciding  whether  or  not  there  is  

sufficient  ground  for  proceeding,  may  direct  the  police  for  

investigation.   But where it takes cognizance and decides as to  

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whether or not there exists a ground for proceeding any further,  

then it is a case squarely falling under Chapter XV of the Code.

38. Thus, the Magistrate exercises a very limited power under  

Section 156(3) and so is its discretion.  It does not travel into  

the arena of merit of the case if such case was fit to proceed  

further.  This distinction has to be kept in mind by the court in  

different  kinds  of  cases.    In  the  present  case,  the  learned  

Magistrate while passing the order dated 29th July, 2008, had  

not dealt with the case on merits, but on a legal assumption  

that  it  was  not  a  case  to  direct  investigation  because  

investigation  was  already  going  on  under  FIR  No.  45/2007.  

Once it is held as done by us above, there were two different  

and distinct offences committed by different persons and there  

was no commonality of transaction between the two.  We do  

not find any error of jurisdiction in the order of the High Court  

requiring the learned Magistrate to deal with the cases afresh  

and pass an order under Section 156(3) of the Code.    Once,  

that  view  is  taken,  the  direction  passed  by  the  learned  

Magistrate directing further investigation under Section 156(3)  

can  also  not  be  complied  with  though  there  is  no  specific  

challenge to that order before us.

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39. Thus, we are called upon to deal with from the point of  

view  as  to  whether  the  investigating  agency  should  be  

restrained from conducting further investigation or there should  

be stay of such investigation.

40. It is true that law recognizes common trial or a common  

FIR  being  registered  for  one  series  of  acts  so  connected  

together  as  to  form  the  same  transaction  as  contemplated  

under Section 220 of the Code.   There cannot be any straight  

jacket  formula,  but this  question has to be answered on the  

facts of each case.   This Court in the case of Mohan Baitha v.   

State  of  Bihar [(2001)  4  SCC 350],  held  that  the  expression  

‘same transaction’  from its very nature is  incapable of exact  

definition.   It is not intended to be interpreted in any artificial  

or  technical  sense.     Common sense in  the ordinary use of  

language must  decide whether  or  not  in  the  very  facts  of  a  

case, it can be held to be one transaction.

41. It  is  not  possible  to  enunciate  any  formula  of  universal  

application for the purpose of determining whether two or more  

acts constitute the same transaction.   Such things are to be  

gathered  from  the  circumstances  of  a  given  case  indicating  

proximity  of  time,  unity  or  proximity  of  place,  continuity  of  54

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action, commonality of purpose or design.  Where two incidents  

are  of  different  times  with  involvement  of  different  persons,  

there is no commonality and the purpose thereof different and  

they  emerge  from  different  circumstances,  it  will  not  be  

possible for the Court to take a view that they form part of the  

same transaction and therefore, there could be a common FIR  

or subsequent FIR could not be permitted to be registered or  

there could be common trial.

42. Similarly,  for  several  offences  to  be  part  of  the  same  

transaction, the test which has to be applied is whether they  

are so related to one another in point of purpose or of cause  

and effect, or as principal and subsidiary, so as to result in one  

continuous  action.   Thus,  where  there  is  a  commonality  of  

purpose or design, where there is a continuity of action, then all  

those persons involved can be accused of the same or different  

offences “committed in the course of the same transaction”.

43. For the reasons afore-stated, we find no jurisdictional or  

other error in the judgment of the High Court and that leads us  

to direct the dismissal of this appeal.  

.…................................J. 55

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[Swatanter Kumar]

  .…................................J. [Madan B. Lokur]

New Delhi December 13, 2012

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