Awadesh Kumar Jha @ Akhilesh Kumar Jha Vs The State of Bihar

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 15 OF 2016

(Arising out of SLP(CRL) No.975 of 2015)

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

Versus

THE STATE OF BIHAR … RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

2. This criminal appeal is directed against the

impugned judgment and order dated 14.10.2014

passed by the High Court of Judicature at Patna in

Crl. Misc. No.13700 of 2014 whereby it has refused

to interfere with the impugned orders therein.

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Both the appellants filed application under

Section 239 of Code of Criminal Procedure, 1973

(for short the “Cr.P.C.”) before the learned

Judicial Magistrate of first class, Kishanganj in

relation to FIR No. 183 of 2008. The same was

dismissed on the ground of being devoid of merit

vide order dated 04.12.2013. The Court of

Sessions, Purnea, in revision petition, has upheld

the decision of the learned Judicial Magistrate of

first class which has further upheld by the High

Court. The correctness of the said order is

challenged in this appeal urging various grounds.

3. Brief facts of the case are stated hereunder

to appreciate the rival legal contentions urged on

behalf of the parties:-

On 04.05.2008 FIR no. 111 of 2008 (for short

the “first FIR”) was registered at Kishanganj

police station against both the appellants along

with other persons for the offences punishable

under Sections 3,4,5,6 and 7 of Immoral Traffic

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(Prevention) Act, 1956 (in short “the Act”) on a

written complaint made by Sub Divisional Police

Officer Ravish Kumar, Kishanganj, Bihar. The

allegation made therein was that on the telephonic

information received from SDPO Phulwari sharif,

Patna regarding the confinement of a minor girl

Rubana Khatun, aged about 16 years, in red light

area of Khagaria for the purpose of carrying out

the flesh trade, the raiding party of police

authorities conducted a raid in the house of Sisa

Khalifa. In the course of such raid, the raiding

party found six couples in objectionable position

in six different rooms. Along with others the

appellant no. 1 (Akhilesh Kumar Jha) and appellant

no.2 (Ajit Prasad) were also arrested in the

course of the raid and they were booked for

offences punishable under Sections 3,4,5,6 and 7

of the Act.

4. The first FIR was investigated by the

investigating officer and the report under Section

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173 of Cr.P.C. was filed before the Chief Judicial

Magistrate (for short “CJM”) for taking cognizance

of the offences alleged against them. The learned

CJM, Kishanganj took cognizance of the alleged

offences vide his order dated 06.08.2008.

5. In the meantime, both the appellants moved

applications for grant of bail. It is alleged that

in those bail applications both the appellants

furnished wrong information regarding their names,

father’s name and address.

6. On the written complaint of Shri Arvind Kumar

Singh, the Inspector of Police, Kishanganj police

station another FIR No. 183 of 2008 (hereinafter

referred to as the “second FIR”) dated 03.07.2008

was registered against both the appellants for the

offences punishable under Sections 419 and 420 of

Indian Penal Code, 1860 (for short “IPC”). The

allegations made therein were that both the

appellants furnished wrong information to the

investigating officer regarding their names,

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father’s name and address during the course of

investigation made on the first FIR and also in

the bail applications filed by them before the

learned CJM in the case arising out of first FIR.

7. The second FIR was investigated by the

investigating officer and a report under Section

173 of Cr.P.C. was filed before CJM, Kishanganj

for taking cognizance of the offences alleged

against the appellants. The learned CJM took

cognizance of the alleged offences vide order

dated 11.09.2008.

8. The appellants filed revision petitions before

the Additional Sessions Judge, Purnea against the

first order of cognizance dated 06.08.2008, passed

by CJM, Kishanganj. The learned Additional

Sessions Judge, Purnea vide order dated 18.12.2010

has set aside the said order of cognizance passed

by CJM, Kishanganj holding that no offence under

Sections 3,4,5,6 and 7 of the Act as alleged in

the first FIR is made out against the appellants.

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9. Thereafter, the appellants filed an

application under Section 239 of Cr.P.C. before

Judicial Magistrate of first class, Kishanganj

seeking their discharge from the offences alleged

in the second FIR. The learned Judicial Magistrate

of first class, Kishanganj after a perusal of

material on record found no merit in the

application under Section 239 of Cr.P.C. filed by

them and accordingly dismissed the same vide his

order dated 04.12.2013.

10. Being aggrieved of the order dated 04.12.2013

passed by the learned Judicial Magistrate of first

class, the appellants approached the Court of

Sessions, Purnea by filing the Criminal Revision

Petition No. 12 of 2014. The learned Sessions

Judge, Purnea concurred with the findings recorded

in the impugned order passed by the learned

Judicial Magistrate of first class, Kishanganj and

dismissed the said revision petition vide order

dated 03.02.2014.

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11. The appellants being aggrieved of the order

dated 03.02.2014 passed by learned Sessions Judge,

Purnea filed Crl. Misc. No. 13700 of 2014 before

the High Court of Judicature at Patna for quashing

of the said order.

12. The learned Single Judge of the High Court of

Patna vide order dated 14.10.2014 dismissed the

said petition holding that at present case is

surviving against the appellants which has arisen

out of the second FIR and the criminal proceedings

arising out of first FIR has already been set

aside. The learned Single Judge did not find any

merit in the said petition filed before her and

she accordingly dismissed the same with a

direction to the Trial Court to conclude the trial

expeditiously. Hence, this appeal with request to

set aside the same and allow the application made

under Section 239 of Cr.P.C. by the appellants

seeking their discharge of the offences alleged in

the second FIR.

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13. Mr. Akhilesh Kumar Pandey, the learned counsel

on behalf of the appellants contended that the

High Court has failed to appreciate the fact that

offences under the second FIR were allegedly

committed during the course of investigation made

on the first FIR, thus, it forms the part of same

transaction with the offences in respect of which

the first FIR was registered. Therefore, instead

of institution of the second FIR, a further

investigation as provided under sub-Section (8) to

Section 173 of Cr.P.C. should have been done in

respect of the offences alleged under second FIR

with the leave of the court. But, no such further

investigation was conducted by the investigating

officer in respect of the said offences. Thus, it

is urged that the registration of second FIR is

wholly untenable in law and therefore liable to be

quashed.

14. It was further contended by him that the

reasons given by the High Court in the impugned

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order in dismissing the Crl. Misc. Petition

holding that the proceedings arising out of first

FIR has already been set aside and at present one

more case is surviving against the appellants

arising out of second FIR is not tenable in law,

for the reason that the offences under the second

FIR are of the same transaction with the first FIR

as they were allegedly committed in the course of

investigation made on the first FIR. Thus, there

was no need for the institution of second FIR

against them. He further submitted that the

registration of second FIR is illegal and void ab-

initio in law as the same is in violation of

Article 20(2) of the Constitution of India and

also contrary to Section 300 of Cr.P.C. and

Section 26 of the General Clauses Act, 1897.

15. He further vehemently contended that the High

Court has erred in not appreciating the law

regarding the impermissibility of registration of

the second FIR against the appellants in respect

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of an offence or different offences committed in

the course of same transaction. He placed strong

reliance upon paras 37, 38 and 58.3 of the

judgment of this Court in the case of Amitbhai

Anilchandra Shah v. Central Bureau of

Investigation & Anr.1, which relevant paragraphs

are extracted in the reasoning portion of this

judgment.

16. He further submitted that the High Court has

failed to appreciate the important aspect of the

case that the second FIR registered against the

appellants for the offences alleged to have

committed forms the same transaction and

therefore, registering another case against the

appellants is not permissible in law as laid down

by this Court in the case referred to supra and

the same is against the principle of double

jeopardy as enshrined in Article 20(2) of the

Constitution of India. Thus, the impugned order

1 (2013) 6 SCC 348

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passed by the High Court is vitiated in law and

the same is liable to be set aside by this Court

in exercise of its appellate jurisdiction.

17. It was further contended by him that the High

Court has not appreciated the fact that even on

merits both the appellants never furnished wrong

information to the investigation officer about

their identity. In this regard, he had submitted

that during the course of investigation on the

first FIR the investigation officer, after

verification found the name of appellant no.1 to

be Awadesh Kumar Jha and not Akhilesh Kumar Jha.

Similarly, with regard to appellant no.2, his

father’s name was also found to be Late Ramanand,

Prasad. The learned counsel urged that appellant

no.1 Awadesh Kumar Jha is also known as Akhilesh

Kumar Jha. The same fact has also been certified

by Mukhiya, Gram Panchayat Sonma, Purnea district.

Further, the father’s name of appellant no.2, Ajit

Prasad is Late Ramendra Prasad, who was also known

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as Late Ramananda Prasad. Therefore, both the

appellants cannot be said to have furnished any

wrong information to the investigation officer

regarding their identity as alleged in the second

FIR.

18. It was further contended by him that the High

Court has failed to appreciate another important

fact that both the appellants were not

instrumental in creating any dubious document for

the purpose of cheating the police as alleged in

the second FIR. The first FIR was recorded by the

police officer and thus, both the appellants

should not be held responsible for wrong

information written by the Police in the first

FIR.

19. The learned counsel for the appellants prayed

for allowing this appeal and requested this Court

to set aside the impugned order passed by the High

Court and requested for discharge of both the

appellants for the alleged offences under the

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second FIR.

20. Per contra, Mr. Rudreshwar Singh, the learned

counsel on behalf of the respondent-State sought

to justify the impugned order passed by the High

Court and the order passed by the learned Judicial

Magistrate of first class dismissing the

application under Section 239 of Cr.P.C. filed by

the appellants for the alleged offences under

second FIR on the ground that the same are well

founded and are not vitiated in law. Therefore, no

interference with the same by this Court is

required in exercise of its appellate

jurisdiction.

21. We have carefully examined the rival

contentions urged on behalf of both the parties

and the decision of this Court in the case of

Amitbhai Anilchandra Shah case (supra) upon which

the strong reliance is placed by the learned

counsel for the appellants. The relevant paras of

the abovesaid case cited by him read thus :-

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“37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences commit- ted in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony, this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as un- der: (SCC pp. 196-97 & 200)

“19. The scheme of CrPC is that an officer in charge of a police sta- tion has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on com- ing to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further infor- mation or material, he need not register a fresh FIR; he is empow- ered to make further investiga- tion, normally with the leave of the court, and where during fur- ther investigation he collects further evidence, oral or documen- tary, he is obliged to forward the

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same with one or more further re- ports; this is the import of sub- section (8) of Section 173 CrPC.

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

xx xx xx

27. A just balance between the fundamental rights of the citizens

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under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-sec- tion (8) of Section 173 CrPC em- powers the police to make further investigation, obtain further evi- dence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, ob- served that it would be appropri- ate to conduct further investiga- tion with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cogniz- able offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or con- nected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under

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Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.”

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

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

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consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.

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

22. The second FIR was registered against the

appellants on a written complaint of Arvind Kumar

Singh, Inspector of Police at Kishanganj police

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station. It was found by the investigating officer

during the course of investigation in the first

FIR that real name of the appellant no.1 was

Awadesh Kumar Jha s/o Late Kaladhar Jha r/o Gram

Akbarpur, District Purnea and was found to be

working as Development Officer at New India

Assurance Company Ltd. Branch Purnia, contrary to

the same the personal information was furnished by

him at the time of investigation of the case on

the first FIR. Similarly, with regard to the

appellant no.2 his father’s name was found to be

Late Ramendra Prasad and not Late Ramanand. His

actual address was found to be Ranipatti P.S.

Kumarkhand, District Madhepura and he was found to

be working as surveyor and investigator of all

branches of General Assurance Company. It is also

alleged in the second FIR that both the appellants

had not disclosed their correct names, father’s

name, their address and occupation in the bail

applications filed by them in respect of the case

arising out of first FIR before the Additional

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Sessions Judge.

23. From a bare perusal of second FIR, it is

abundantly clear that both the appellants have

furnished wrong information to the police as to

their names, father’s name and address during the

course of investigation made on the first FIR.

This Court is of the view that the offences

alleged to have committed by them are mentioned in

second FIR, which offences are distinct offences

committed by both the appellants and the same have

no connection with the offences for which the

first FIR was registered against them. Therefore,

for the reason stated supra, the contention urged

by the learned counsel on behalf of both the

appellants that instead of institution of second

FIR for the said offences, a further investigation

as provided under sub-Section (8) to Section 173

of Cr.P.C. should have been done by the

investigation officer on the ground of they being

the part of same transaction with offences

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registered under first FIR is wholly untenable in

law and liable to be rejected.

24. Further, the decision of this Court in the

case of Amitbhai Anilchandra Shah (supra) upon

which strong reliance is placed by the learned

counsel on behalf of both the appellants does not

render any assistance to them in the case at hand.

This Court in the said case after examining the

relevant provisions of Cr.P.C. has categorically

held thus:-

“58.2. The various provisions of the Code of Criminal Procedure clearly show that an officer-in-charge of a police station has to commence investigation as provided in Section 156 or 157 of the Code on the basis of entry of the first information report, on coming to know of the commission of cognizable offence. On completion of investigation and on the basis of the evidence collected, the investigating officer has to form an opinion under Section 169 or 170 of the Code and forward his report to the Magistrate concerned under Section 173(2) of the Code.

58.3. Even after filing of such a report, if he comes into possession of further information or material, there is no need to register a fresh FIR, he is empowered to

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

xx xx xx

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

(emphasis supplied by this Court)

25. It is well settled principle of law that there

can be no second FIR in the event of any further

information being received by the investigating

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agency in respect of offence or the same

occurrence or incident giving rise to one or more

offences for which chargesheet has already been

filed by the investigating agency. The recourse

available with the investigating agency in the

said situation is to conduct further investigation

normally with the leave of the court as provided

under sub-Section (8) to Section 173 of Cr.P.C.

The reliance is placed on the decision of this

court rendered in T.T.Antony v. State of Kerala2,

relevant paras of which read thus:

“19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with

2 (2001) 6 SCC 181

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the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC. xx xx xx 21. ...The 1973 CrPC specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.”

(emphasis supplied)

26. However, this principle of law is not

applicable to the fact situation in the instant

case as the substance of the allegations in the

said two FIRs is different. The first FIR deals

with offences punishable under Sections 3,4,5,6

and 7 of the Act, whereas, the second FIR deals

with the offences punishable under Sections 419

and 420 of IPC which are alleged to have committed

during the course of investigation of the case in

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the first FIR. This Court is of the view that the

alleged offences under the second FIR in substance

are distinct from the offences under the first FIR

and they cannot, in any case, said to be in the

form of the part of same transaction with the

alleged offences under the first FIR. Therefore,

no question of further investigation could be made

by the investigating agency on the alleged

offences arisen as the term “further

investigation” occurred under sub-Section (8) to

Section 173 of Cr.P.C. connotes the investigation

of the case in continuation of the earlier

investigation with respect to which the

chargesheet has already been filed. The reliance

is placed on the judgment of this Court in the

case of Rama Chaudhary v. State of Bihar3, the

relevant para 17 reads thus:

“17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation,

3 (2009) 6 SCC 346

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the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.” (emphasis supplied)

27. Therefore, for the above said reasons the

submissions made on behalf of both the appellants

are not tenable in law and the same cannot be

accepted by this Court. Further, the case of

Amitbhai Anilchandra Shah (supra) upon which

strong reliance is placed by the learned counsel

for both the appellants is also totally

inapplicable to the fact situation and it does not

support the case of both the appellants.

28. For the reasons stated supra, this Court does

not find any reason either to interfere with the

impugned order passed by the High Court or with

the order of dismissal dated 04.12.2013 passed by

the Judicial Magistrate first class, Kishanganj,

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on the application made under Section 239 of

Cr.P.C. filed by the appellants. Accordingly, this

appeal being devoid of merit is dismissed. The

order dated 09.02.2015 granting stay shall be

vacated.

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

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

New Delhi, January 7, 2016

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ITEM NO.1A-For Judgment COURT NO.10 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 15/2016 arising from SLP(Crl.) No.975/2015 AWADESH KUMAR JHA @ AKHILESH KUMAR JHA & ANR. Appellant(s) VERSUS THE STATE OF BIHAR Respondent(s) Date : 07/01/2016 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Akhilesh Kumar Pandey,Adv. For Respondent(s) Mr. Samir Ali Khan,Adv.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising Hon'ble the Chief Justice and His Lordship.

Leave granted. The appeal is dismissed in terms of the signed

Non-Reportable Judgment.

(VINOD KUMAR) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

(Signed Non-Reportable judgment is placed on the file)