Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
Our present legal system has its roots dating back to the 19th century. The first Law Commission was established during the British Raj era in 1834 by the Charter Act of 1833.It was presided over by Lord Macaulay. After that, three more Commissions were established in pre-independent India. It suggested various enactments to the British Government, most of which were passed and enacted and are still in force in India. Few of the most important recommendations made by this First Law Commission were those on, Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc. Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones. The process which started by the Britisher’s in the 19th century is still developing. The Indian legal system has transformed to a great extent in 1950 with the commencement of Constitution of India.1 The constitution of India which is the fundamental law of the land provides under Article 372 that continuance in force of existing laws and their adaptations. Article 372 of the Constitution of India is reproduced below: -
372. Continuance in force of existing laws and their adaptation
(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this
1 Constitution of India Article 372
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law
(3) Nothing in clause (2) shall be deemed
(a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or (b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause. Explanation I- The expression law in force in this article shall include a law passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. Explanation II- Any law passed or made by a legislature or other competent authority in the territory of India which immediately before the
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
commencement of this Constitution had extra territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra territorial effect. Explanation III Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force. Explanation IV- An Ordinance promulgated by the Governor of a Province under Section 88 of the Government of India Act, 1935 , and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause ( 1 ) of Article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period.
From the above discussion it can be concluded that a pre constitutional law will remain in force unless altered or repealed or amended by a competent legislature or other competent authority. One such law was Code of Criminal Procedure1898, which was in force till 1973 when it was ultimately repealed by the Code of Criminal Procedure, 1973. However, the Code of Criminal Procedure is not exhaustive one and it has certain grey areas which needs interpretation by the Constitutional Courts or amendment by the competent authority whereby the lacunas of Code of Criminal Procedure can be addressed.
In this article we are dealing with one such problem of the Code of Criminal Procedure where there is no certainty about lodging of second or subsequent information after lodging of First Information Report (popularly known as “FIR”). The First Information Report which is basically the first step towards the initiation of criminal machinery into motion whenever a crime
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
has been committed. However, it is pertinent to mention here that the First Information Report2 is nowhere defined under the Code of Criminal Procedure or Indian Penal Code. The relevant section which deals with the lodging of First Information Report is Section 154, 155 and 157 Cr.P.C.
The lodging of First Information Report is mandatory for the police in case of cognizable offences. This is well settled by the Hon’ble Supreme Court of India in case of Lalita Kumari V. Government of Uttar Pradesh.3 The First Information Report should contain at least some information about the crime committed as also some information about the manner in which the cognizable offence has been committed, cryptic message recording of an occurrence cannot be termed as First Information Report.
Now the question that arises here is that what would happen in a case where the police received the information regarding the commission of offence more than once? If two First Information Reports have been lodged of the same incident what is the fate of it? What would happen to the subsequent First Information Report? These questions have been dealt by the Hon’ble Supreme Court in catena of judgments one such leading case on this point is T T Antony V. State of Kerala and Others4 whereby the Hon’ble apex court laid down following proposition of law:-
18. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law
2 Criminal Procedure Code Section 154 – Information in Cognizable Cases Criminal Procedure Code Section 155 – Information as to Non Cognizable cases and investigation of such cases Criminal Procedure Code Section 157- Procedure for Investigation 3 Lalita Kumari V State of Uttar Pradesh 3 AIR 2014 SCC 187. 4 T T Antony V. State of Kerala and Others 2001 6 SCC 181
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C5., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more information than one is given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C6. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C7. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C.
The Hon’ble apex court again dealt with the aforementioned question in Nirmal Singh Kahlon V. State of Punjab8 and modified its earlier view to some extent and held that the second First Information Report of the same
5 Criminal Procedure Code Section 169 – Release of accused when evidence deficient Criminal Procedure Code Section 170 – Cases to be sent to magistrate when evidence is sufficient 6 Criminal Procedure Code Section 154 – Information in cognizable cases 7 Criminal Procedure Code Section 162 – Statements to police not to be signed : Use of statements in evidence 8 Nirmal Singh Kahlon V. State of Punjab (2009) 1 SCC 441
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
incident is permissible, the relevant paragraph of the judgment is quoted below:-
59. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/ or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.
In Upkar Singh V. Ved Prakash and others9 the court considered the correctness of the judgement rendered in TT Antony Supra and laid down the following law: -
23. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding 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 herein below 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 books. This cannot be the purport of the Code.
9 Upkar Singh V. Ved Prakash and others (2004) 13 SCC 292
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
24. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.
Keeping in view the aforesaid principles of law in mind we would examine whether the second First Information Report of the same incident is barred by the law or not. If we go by the provisions of Cr.P.C. we would find that there are no specific provisions which bar the lodging of subsequent First Information Report of the same incident. At the same time there is no specific provision which enables a person to lodge First Information Report of the same incident more than once either. The simple reason for this is that if such provision for lodging FIR after FIR of the same incident would be provided, it would result in nothing but chaos. Such provision would enable a person to harass anybody by lodging more than one FIR of the same person against the same accused by claiming that some new conspiracy or relevant material has been collected or discovered against the same accused in the same incident. That would lead to an unending process of investigation and harassment of a person, which is definitely not the intention of legislature while enacting the Code of Criminal Procedure. The basic idea behind lodging the FIR is to put the criminal machinery in motion so that the investigation of the instant case could be completed as soon as possible by the investigating agency.
The other thing which we have to keep in mind while dealing with the above scenario is the principles of interpretation of statutes. The settled principle of law is that a penal statute has to be construed strictly. Criminal and Penal statutes, must be strictly construed that is they cannot be enlarged or extended by intendment, implication or by any equitable considerations.
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
In other words, the language cannot be enlarged beyond the ordinary meaning of the term in order to carry into effect the general purpose for which the statute was enacted.
The penal statutes must be construed in the sense which best harmonizes with their intent and purpose. The more correct version of the doctrine appears to be that the statutes of this category are to be fairly construed and faithfully applied according to the intent of legislature, without unwarranted severity on one hand or unjustifiable levity on the other. A penal statute has no doubt to be construed strictly but the intention of the Legislature must govern in the construction of a penal statute as much as in any other statute.
In the present case it appears that the distinction between a strict and liberal construction has almost disappeared and it may be taken to be present law that the same rules would govern the construction of a penal statute as much as in any other statutes.
Now coming to the present question, from a bare perusal of the Code of Criminal Procedure, 1973, shows that the First Information Report can be lodged by any person in relation to a crime committed. The information shall be recorded by the police as per the provisions of section 154, 155 or 157 Cr.P.C. as the case may be. After registration of FIR the police would investigate the case as per the provisions of section 156 Cr.P.C. if it discloses commission of any cognizable offence and in case of non- cognizable offence, the investigation would be done as per the provisions of section 155 Cr.P.C. After completion of investigation the police will file the chargesheet or final report under section 173 Cr.P.C10. However, it is pertinent to mention here that the magistrate is not bound to take cognizance on the police report and may order further investigation.
10 Criminal Procedure Code 1973, Section 173- Report of police officer on completion of investigation
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
The whole of Cr.P.C. nowhere contemplates that second or subsequent First Information Report is permitted. If a person is aggrieved by the tainted investigation, he can move a protest application before the concerned magistrate. He can also go before the High Court under Article 22611 of the Constitution of India for fair or further or re investigation of a case.
If more than one First Information Report is permitted, it would result disaster. For example, let us assume that of the same incident two FIR’s have been lodged. In one of the FIR, the police filed the chargesheet against the accused persons. However, in other FIR the police filed the final report or closure report against the accused. Now, which of the two investigations would be treated as fair? Amongst the two investigations whose benefit is given to the accused persons? And if the third FIR has been lodged against the same set of accused persons of the same incident on the basis of development of new angle in the case, what is the fate of earlier two police reports?
Conclusion
Thus we can say that the Hon’ble apex court has erred in interpreting the provisions of Code of Criminal Procedure regarding lodging of First Information Report. The hon’ble apex court should also keep in mind the fair balance and the interest of accused persons. The accusations most of the times are aggravated in nature in order to screw the accused. No one in a country like ours narrates the whole story as true. The hon’ble apex court should interpret the criminal statutes so that the balance couldn’t be hampered. The Apex Court now-a-days is quite inclined towards the prosecution side or victim side and ignoring the persons and their interests on the other side whether it is the offence of 498A, 376, 35412 etc., which is
11 Constitution of India Article 226- Power of high courts to issue certain writs 12 Indian Penal Code section 498A- Husband or relative of husband of a woman subjecting her to cruelty Indian Penal Code Section 376- Punishment for rape Indian Penal Code Section 354- Assault or criminal force to women with intent to outrage her modesty
Lodging of Subsequent FIRs of same incident: A Critical analysis. Author- Praveen Kr. Yadav & Rashmi Yadav
very dangerous for our legal system. People of our country have faith in judiciary, and judiciary should stick to the basic principles of law, ignoring the basic principle of law could result in misadventure which is dangerous for the society as in the present case.