Multiple investigations by multiple police stations could well result in an accused, who can eventually be tried and punished for the said incident only once, being subjected to repeated arrests by different investigating officers, and being called upon to appear before different police officers attached to different police stations, in connection with the investigation of the same offence. While the power to arrest an accused is conferred on the investigating officer under Section 41 Cr.P.C, construing the provisions of the Cr.P.C. as enabling different investigating officers attached to different police stations to, one after the other, arrest the same person for the same incident/occurrence would not be a fair or a just procedure. The petitioner's fundamental rights, under Article 21 of the Constitution of India, would be violated as he would not only face the threat of imminent and numerous arrests by different investigating agencies for the same incident/occurrence, but his liberty would also be restricted on his being required to appear before different investigating agencies conducting parallel investigation into the same incident.Should a person be made to undergo the ordeal of an imminent arrest by different investigating officers attached to the different police stations for the same offence? Should he, each time a complaint is registered against him in a police station for which a complaint has already been registered in another, be required to seek anticipatory bail under Section 438 Cr.P.C.? Would his being asked to appear before different investigating officers, pursuant to a notice issued under Section 41-A Cr.P.C., in connection with the very same incident, not violate his fundamental right of liberty under Article 21 of the Constitution of India? The answer to all these questions can only be in the negative.
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.824 of 2013
Print Page
Andhra High Court
Akbaruddin Owaisi.... ... vs The Govt. Of A.P. Rep., By Its ... on 19 July, 2013
Citation; 2014 CRLJ 2199 APTHE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.824 of 2013
Does Section 154 of the Criminal Procedure Code, 1973 (hereinafter called "Cr.P.C") permit registration of two separate complaints in two different police stations for offences arising out of one occurrence/event/incident? If so, does the Cr.P.C. permit parallel and simultaneous investigations being conducted thereinto? If, on the other hand, the Cr.P.C. does not permit two parallel investigations by police officers of two different police stations, for offences arising out of the same incident, can the Station House Officer or the Magistrate transfer the complaint registered in one police station to the other for investigation even if both the police stations have territorial jurisdiction to register and investigate the said complaint? In such a case, should the transferred complaint be treated as a Section 162 Cr.P.C. statement by the Station House Officer of the police station to which it is transferred? These are some of the questions which arise for consideration in this Writ Petition.
2. The factual matrix, in which these questions arise, needs to be noted first. The petitioner delivered a speech on 08.12.2012 at Nizamabad which resulted in a public outcry. Crime No.1 of 2013, for offences under Sections 153, 153A and 295A IPC, was registered on 02.01.2013 by the third respondent at Nizamabad. In the meanwhile the ninth respondent filed a private complaint before the IV Additional Chief Metropolitan Magistrate, Hyderabad which was referred, under Section 156(3) Cr.P.C, to the fifth respondent who registered the said complaint as Crime No.5 of 2013 for the offence under Section 153A IPC, and issued a notice to the petitioner under Section 41-A Cr.P.C asking him to appear on 10.01.2013. For the same or a similar speech delivered by him, several other complaints also appear to have been lodged against the petitioner in different Courts/police stations.
3. Another speech delivered by the petitioner on 22.12.2012, at Nirmal in Adilabad District, resulted in Crime No.1 of 2013 being registered by the fourth respondent on 02.01.2013 for offences under Sections 153A and 121 IPC. While the relief sought for in this Writ Petition includes a direction to the police officers not to register any further FIR against the petitioner in relation to his speech at Nizamabad and Nirmal on 08.12.2012 and 22.12.2012 respectively, Sri S. Niranjan Reddy, Learned Counsel, would submit that the petitioner does not seek an adjudication, in this writ petition, on the validity of the several complaints registered in respect of his speech at Nirmal, and it would suffice if the Court were to examine the legality or otherwise of the second FIR registered as Crime No.5 of 2013, in relation to the petitioner's speech at Nizamabad, for which a complaint had already been registered by the third respondent as Crime No.1 of 2013, even if the 5th respondent is presumed to have territorial jurisdiction to register the said FIR. The submission of the Learned Counsel, in short, is that, since the complaint was already registered as Crime No.1 of 2013 by the third respondent, a second FIR in respect of the very same incident (speech) is barred; and, consequently, while investigation into Crime No.1 of 2013 can be continued by the third respondent, Crime No.5 of 2013 before the fifth respondent must be quashed.
4. The petitioner, a member of a registered state political party, is also a Member of the A.P. State Legislative Assembly. He spoke at an assembled gathering at Nizamabad on 08.12.2012 which he claims had touched upon various social and political aspects, including those which concerned the minority community. In his writ affidavit the petitioner states that he does not bear any ill-will, grudge or negative emotion or sentiment against any community and believes that all citizens, irrespective of their faith or religion, must be treated as equals; on 28.12.2012 an article was published by a media house selectively highlighting parts of his speech, without placing the whole speech delivered by him in context; this article resulted in the news getting viral; video parts of the speech were picked up by the electronic media, posted on the internet and aired; on 24.12.2012 he left for medical treatment to the United Kingdom; as a result of the media trial against him, pressure was mounted for initiating action; only as a populist reaction, the third respondent had registered Crime No.1 of 2013; and thereafter, on a private complaint being filed by the ninth respondent, the IV Additional Chief Metropolitan Magistrate, Hyderabad had referred the said complaint to the fifth respondent under Section 156(3) Cr.P.C which was registered as Crime No.5 of 2013. The petitioner's reference to several other complaints, lodged against him, pursuant to his speech at Nirmal on 22.12.2012, need no mention as its legality or otherwise has not been put in issue in the present writ proceedings.
5. The petitioner would contend that the 5th respondent should have caused an enquiry, whether or not similar complaints were pending, before registering FIR No.5 of 2013; registering multiple FIRs against him for the very same incident is arbitrary, irrational and violative of Article 14 of the Constitution of India; it also affects his right to liberty under Article 21, and his right of free movement under Article 19, of the Constitution of India as he would be constrained to move from one police station to another as is evident from the notice issued to him by the fifth respondent under Section 41-A Cr.P.C.
6. In his counter affidavit, filed on behalf of the second respondent, the Additional Director General of Police, Hyderabad would submit that on 05.12.2012 Sri Nayeemuddin and his followers, belonging to the political party to which the petitioner belongs, had approached Nizamabad police station and had sought permission for a public meeting to be conducted on 08.12.2012 from 8.00 P.M; police force was deployed and bandobust was entrusted on 08.12.2012 from 2.00 P.M. onwards; several persons, including the petitioner, addressed the gathering which concluded at 12.00 midnight; and the compact disc, containing a video of the meeting, showed that the petitioner had delivered a provocative speech which was likely to promote enmity between different communities. After referring to certain portions of the speech, it is stated that the petitioner had deliberately and maliciously intended to outrage religious feelings by insulting the religious beliefs of others, and to create communal disturbances in the country; he had abetted and instigated muslims to wage war against the elected Government of India, and had sought to promote enmity between different religious groups; such acts were prejudicial to the maintenance of harmony; a suo motu case was, therefore, registered in larger public interest by the third respondent as Crime No.1 of 2013, for offences under Sections 153, 153A and 295A IPC, on 02.01.2013 at 23.00 hrs and investigation was taken up; during the course of investigation, the DVD was sealed and packed in the presence of panch witnesses; the petitioner had deliberately and intentionally evaded the notice under Section 41A Cr.P.C only to avoid investigation; he was taken into custody on 08.01.2013 at 17.30 hrs in connection with his speech at Nirmal which had resulted in Crime No.1 of 2013 being registered against him by the fourth respondent; he was sent to judicial remand; investigation is not yet complete; some more witnesses are required to be examined; the specimen voice of the petitioner, recorded in the open Court of the I Additional Judicial Magistrate of First Class, Nizamabad, was sent to FSL, Chandigarh for comparison of the speech recorded in the seized DVD; as soon as a report is received from FSL, further action would be taken; on the IV Additional Chief Metropolitan Magistrate, Hyderabad referring it to him, under Section 156(3) Cr.P.C, the fifth respondent had registered the complaint; a second complaint in regard to the same incident is maintainable more so as the complaint in Crime No.5 of 2013 was not made by the complainant in Crime No.1 of 2013 before the Nizamabad police station; the complainant, in Crime No.5 of 2013, stated that his feelings were hurt after watching the speech, given by the petitioner, on T.V; and the contents of both the complaints differ from each other.
7. In his counter affidavit, the eleventh respondent would state that registration of multiple FIRs/complaints does not violate the petitioner's fundamental rights; no blanket order can be issued to the respondents prohibiting registration of FIRs against the petitioner; the petitioner's speech at Nizamabad and Nirmal, coupled with his body language, were intended to provoke a section of society to wage war against the government; the petitioner had abused Hindu Gods in India as a whole; a prima facie case was made out before the Learned Magistrate who had referred the complaint for investigation under Section 156(3) Cr.P.C; no law prohibits registration of more than one FIR in respect of the same occurrence; though the occurrence may be one, aggrieved victims may be more; each aggrieved person has the right to lodge a complaint in respect of an offence, in so far as his grievance is concerned, even if it arises out of the same occurrence; the complaints filed against the petitioner are different and distinct, and are maintainable on their own, despite the fact that the occurrence is one and the same; and Article 20(2) of the Constitution of India has no application.
8. In his reply affidavit, the petitioner would state that he is aggrieved by the action of the respondents, in registering multiple complaints/FIRs in respect of one alleged occurrence, which violated his constitutional and fundamental rights; he did not deliver statements likely to promote enmity between different communities; in this writ petition he has not sought that all the FIRs be quashed; the relief sought for is confined only to interdict multiple FIRs being registered with respect to the same alleged offence; though he had gone abroad for treatment in U.K. and was due to return only on 15.01.2013, he came back to India on 07.01.2013 itself; it is incorrect to state that he had deliberately and intentionally avoided complying with the Section 41-A notice; in view of his precarious medical condition, he had requested for a four day adjournment to comply with the notice; he is an MLA and bears strong allegiance to the Constitution and its values; the legality of the FIRs registered at Nizamabad and Nirmal, and the investigation being carried on pursuant thereto, are not being questioned in the present writ petition; he reserves his right to question the same in appropriate legal proceedings; his grievance in this Writ Petition is confined to registration of multiple FIRs, in a vexatious manner, contrary to the procedure envisaged in the Cr.P.C. and the dicta of the Supreme Court; and it is incorrect to state that the complaint given before the IV Addl. Chief Metropolitan Magistrate, Hyderabad is not the same as the one registered at Nizamabad.
9. Elaborate oral submissions were made by Sri S. Niranjan Reddy, Learned Counsel for the petitioner; the Learned Government Pleader for Home; Sri N. Ramachandra Rao, Learned Senior Counsel and Sri C. Subba Rao, Sri S. Sriram and Sri N. Harinath, Learned Counsel appearing on behalf of the unofficial respondents. Written submissions were filed by Sri N. Ramachandra Rao, Learned Senior Counsel, Sri S. Niranjan Reddy, Sri S. Sriram and Sri N. Harinath. The submissions of Counsel on either side, and the judgments cited by them, shall be referred to while examining the rival contentions under different sub-heads. I have taken the liberty of para-phrasing judgments of the Supreme Court and various High Courts, construing provisions of the Criminal Procedure Code, 1898, substituting them with similar provisions under the Criminal Procedure Code, 1973.
I. IS REGISTRATION OF MULTIPLE FIRs IN THE SAME POLICE STATION, FOR THE SAME OCCURRENCE, BARRED UNDER SECTION 154(1) Cr.P.C?
10. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, in respect of an incident/crime, more than one FIR cannot be registered; and, even though exceptions were carved out thereto, the declaration of law, in T.T. Antony v. State of Kerala1, has not been negated in any of the subsequent judgments of the Supreme Court.
11. On the other hand Sri S. Sriram, Learned Counsel for respondent No.10, would submit that multiple FIRs can be registered for the same offence, more particularly when the subsequent FIRs narrate the occurrence in a different spectrum or raise a different facet of the same allegation; while the Code provides for only one trial, it does not bar registration of multiple FIRs as an inviolable principle; neither T.T. Antony1; nor Babubhai v. State of Gujarat2 can be understood to have laid down any principle to the effect that, irrespective of the nature of the offence alleged against the accused, multiple FIRs are impermissible; and the issue of multiple FIRs must be considered on the facts of each case.
12. Before examining the rival contentions, it is necessary to briefly note the provisions of the Cr.P.C. relating to the receipt and registration of complaints of cognizable offences, and the procedure prescribed for investigation thereinto culminating in a report being filed by the investigating officer before the concerned Magistrate. The receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. There is no reason why the police, if in possession through their own knowledge or by means of credible information through informal intelligence which genuinely leads them to believe that a cognizable offence has been committed, should not, of their own, undertake investigation into the truth of the matters alleged. Section 157 Cr.P.C, when directing that a police officer shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report or an FIR) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, and to record the circumstances before there is time for them to be forgotten or embellished. (King Emperor v. Khwaja Nazir Ahmad3).
13. Chapter XII Cr.P.C. relates to information to the police and their powers to investigate. The opening words of Section 154 Cr.P.C. imply that there has to be an FIR about an incident which constitutes a cognizable offence. (Anju Chaudhary v. State of Uttar Pradesh4). An information, given under sub-section (1) of Section 154 Cr.P.C, is commonly known as the FIR though this term is not used in the Code. It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station and marks the commencement of the investigation. The investigating agency has to proceed only on information about the commission of a cognizable offence which is first entered in the police station diary, by the Officer In-charge. (T.T. Antony1; Babubhai2). Section 154(1) Cr.P.C contains four mandates to an officer in charge of a police station. The first enjoins that every information, relating to the commission of a cognizable offence, if given orally, shall be reduced to writing; the second directs that it be read over to the informant; the third requires that every such information, whether given in writing or reduced to writing, shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. A further directive is contained in sub-section (1) of Section 157 CrPC that, immediately on receipt of the information, the officer in charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate the facts and circumstances of the case. (T.T. Antony1; Bijoy Singh v. State of Bihar5).
14. The non-qualification of the word "information" in Section 154(1), unlike in Section 41(1)(a) and (g) Cr.P.C, is to prevent the police officer from refusing to record an information relating to the commission of a cognizable offence, and to register a case thereon, on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, the 'reasonableness' or 'credibility' of the information is not a condition precedent for registration of a case. The sine qua non for recording an FIR is that there must be an information, and that information must disclose a cognizable offence. If information disclosing a cognizable offence, satisfying the requirements of Section 154(1) Cr.P.C, is laid before him, the police officer has no option but to enter the substance thereof in the prescribed form i.e., to register a case on the basis of such information. (State of Haryana v. Bhajan Lal6). The FIR sets the machinery of criminal law into motion. It is the document on which the entire case of the prosecution is built. (Anju Chaudhary4). The F.I.R has limited use and is not an encyclopedia of the prosecution's case. (Ramesh Maruti Patil v. State of Maharashtra7). It is not the requirement of the law that the minutest details be recorded in the FIR lodged immediately after the occurrence. (Bijoy Singh5). There is no provision in the Cr.P.C which requires an investigating agency to provide a hearing to the affected party before registering an FIR. (Samaj Parivartan Samudaya v. State of Karnataka8).
15. After registration of the FIR, begins the sequence of investigation in a case, collection of evidence during investigation and formation of the final opinion which culminates in the filing of a report under Section 173 Cr.P.C. (Anju Chaudhary4). The officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of the entry of the FIR, on coming to know of the commission of a cognizable offence. (T.T. Antony1). "Investigation" primarily consists in the ascertainment of the facts and circumstances of the case. By definition, under Section 2(h) Cr.P.C, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". (H.N. Rishbud v. State of Delhi9). Commencement of investigation by a police officer is subject to two conditions, firstly the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1), and secondly the police officer should subjectively satisfy himself that there is sufficient ground for entering on an investigation even before he starts the investigation. Clause (b) of the proviso to Section 157(1) Cr.P.C. postulates that the police officer shall draw his satisfaction only on the material placed before him at that stage, namely, the FIR together with the documents, if any, enclosed therewith, before he enters on an investigation. (Bhajan Lal6). The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case can the Magistrate intervene and either direct an investigation or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. (State of W.B. v. Sampat Lal10; S.N. Sharma v. Bipen Kumar Tiwari11).
16. Under the Code, investigation consists generally of the following steps: (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial. (H.N. Rishbud9; Augustine v. State12; Krishna Lal Gulati v. The State13).
17. "Investigation" takes in several aspects and stages ending ultimately with the formation of an opinion by the police officer, (Abhinandan Jha v. Dinesh Mishra14), under Section 169 or 170 CrPC, as the case may be, and in forwarding his report to the Magistrate concerned under Section 173(2) CrPC. (T.T. Antony1). Under Section 173(2)(d) the investigating officer should state whether any offence appears to have been committed and, if so, by whom. The Code thus contemplates that the investigating officer should himself assess the evidence collected by him and form his own opinion regarding the complicity of particular persons in respect of the offence alleged. (Augustine12). The formation of the opinion, whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station and that opinion determines whether the report is to be under Section 170 being a 'charge- sheet', or under Section 169 - 'a final report'. Formation of opinion by the police is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. (Abhinandan Jha14; Pradeep Dutta Bhowmik v. State of Tripura15; Heera Lal Pandit @ Hira Lal v. State of Bihar16).
18. The powers conferred on police officers, to investigate into cognizable offences, is unfettered as long as it is legitimately exercised in strict compliance with the provisions of the Cr.P.C. The scheme envisages a Magistrate being kept in the picture at all stages of the police investigation but does not authorize him to interfere with the actual investigation or to direct how that investigation is to be conducted. (Bhajan Lal6; A.K. Roy v. State of W.B.17). The court would not interfere with the investigation or during the course of investigation which would mean from the time of lodging of the first information report till the submission of the report, by the officer in charge of the police station, in Court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency. (State of Karnataka v. Pastor P. Raju18; Union of India v. Prakash P. Hinduja19; King Emperor3; H.N. Rishbud9; State of W.B. v. S.N. Basak20; Abhinandan Jha14 and State of Bihar v. J.A.C. Saldanha21; Sampat Lal10). The scheme of the Code is that an investigation is a normal preliminary to an accused being put up for trial for a cognizable offence except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under Section 202 of the Code to order investigation if he thinks fit. (H.N. Rishbud9). While it is open to the Magistrate to accept or disagree with their opinion, he cannot compel the police to form a particular opinion on the investigation and to submit a report as that would encroach on the sphere of the police and compel them to form an opinion so as to accord with the decision of the Magistrate. (Abhinandan Jha14).
19. Where more information than one are given in respect of the same incident, involving one or more than one cognizable offences, it is implied in Section 154 Cr.P.C that the officer in charge of a police station need not enter every one of them in the station house diary. It is the information first entered therein which is the FIR postulated by Section 154 Cr.P.C. All other subsequent information made orally or in writing after the commencement of the investigation, or such other cognizable offences as may come to the notice of the police officer during investigation, are statements falling under Section 162 Cr.P.C. and cannot be treated as an FIR as it would in effect be a second FIR, (T.T. Antony1; Babubhai2), will amount to an improvement of the facts mentioned in the original complaint, and hence prohibited under Section 162 Cr.P.C. (Upkar Singh v. Ved Prakash22; T.T. Antony1). The distinction between an information relating to a cognizable offence under Section 154 and a statement under Section 161(3) is that, while the former is required to be signed by the person giving the information, in the latter the statement of the witness is, in terms of Section 162 Cr.P.C, not required to be signed by him. While the information, referred to in Section 154 Cr.P.C, results in commencement of investigation of a cognizable offence by a police officer, the statement under Section 161/162 Cr.P.C. is recorded during the course of the investigation and is among the inputs available to the investigation officer in forming an opinion whether or not there is sufficient evidence or a reasonable ground to forward the accused to the Magistrate. The nature of information received under Section 154 and the names of the witnesses, whose statements are recorded under Section 161 and 162 Cr.P.C, also form part of the police report under Section 173 (2) and (5) Cr.P.C. The report as envisaged by Section 173(2) has to be accompanied, as required by sub-section (5), by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must contain as required by sub-section (2) from its accompaniments which are required to be submitted under sub-section (5). The whole of it is submitted as a report to the Court. (Satya Narain Musadi v. State of Bihar23).
20. 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 as the police officer has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. (T.T. Antony1). Whenever further information is received by the investigation agency, it is always in furtherance of the FIR. (Chirra Shivraj v. State of Andhra Pradesh24). Where, as a result of further investigation, certain information is gathered a second FIR is unwarranted and, instead, filing a supplementary charge sheet will suffice. (Amitbhai Anilchandra Shah v. The Central Bureau of Investigation25). For the same event and offences against the same people, there cannot be a second FIR. (Anju Chaudhary4). Filing of multiple complaints, relatable to the same transaction, must be controlled as it causes tremendous harassment and prejudice. (Damodar S. Prabhu v. Sayed Babalal H.,26).
II. CASES WHERE THE RULE, AGAINST REGISTRATION OF TWO FIRs FOR THE SAME OCCURRENCE/INCIDENT, WILL NOT APPLY:
21. The submission of Sri S. Sriram, Learned Counsel, that T.T. Antony1 is a fact based judgment, and the principle laid down therein cannot be said to be the "law" for the proposition of a bar on registration of multiple FIRs irrespective of the facts of each case, does not merit acceptance as the declaration of law, in T.T. Antony1), has not been diluted in any subsequent judgments of the Supreme Court even though exceptions have been carved out. (Amitbhai Anil Chandra Shah25). The rule, that any further complaint against the same accused for the same incident, subsequent to the registration of a case is prohibited under the Cr.P.C, will not apply:-
(i). in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the first FIR. (Rameshchandra Nandlal Parikh v. State of Gujarat (2006) 1 SCC 732).
(ii). where the incident is separate and the offences are similar or different, or where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first. (Anju Chaudhary v. State of Uttar Pradesh: (2013) Cri.L.J. 776 (SC).
(iii). Where several distinct offences/incidents have been reported. In such a case the investigating agency should issue separate FIRs under Section 154(1) Cr.P.C. (M/s. Jagathi Publications Ltd. Rep. by Y. Eshwara Prasad Reddy v. Central Bureau of Investigation: 2012(2) ALD (Cri) 762). (iv). to cryptic, anonymous or oral messages which do not clearly specify a cognizable offence and cannot be treated as an FIR. No exception can be taken if, upon receipt of proper information, another detailed FIR is recorded, and the detailed FIR is treated as the FIR. (Tapinder Singh v. State of Punjab (1970) 2 SCC 113; Vikram v. State of Maharashtra (2007) 12 SCC 332). (v). Where, for an earlier period, there was an FIR which was duly investigated into and culminated in a final report which was accepted by a Competent Court. (M. Krishna v. State of Karnataka ((1999) 3 SCC 247: AIR 1999 SC 1765). (vi). Where the earlier complaint was decided on insufficient material or was passed without understanding the nature of the complaint, or where 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. In such cases the test of full consideration of the complaints on merits must be applied. (Shiv Shankar Singh v. State of Bihar [(2012) 1 SCC 130).
(vii). in cases where there are different versions, they are in respect of two different incidents/crimes, and when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage and can also surface in another proceeding.(Nirmal Singh Kahlon v. State of Punjab: (2009) 1 SCC 441; Babubhai v. State of Gujarat : (2010) 12 SCC 254). (viii). even in cases where the first complaint is registered and investigation initiated, it is possible to file a further complaint based on the material gathered during the course of investigation. (Upkar Singh v. Ved Prakash ((2004) 13 SCC 292 : AIR 2004 SC 4320;Ram Lal Narang v. State (Delhi Administration) (1979 CriLJ 1346) : (1979) 2 SCC 322).
(ix). Where two FIRs are lodged in respect of the same incident having materially different allegations of commission of different cognizable offences. (T.T. Antony v. State of Kerala (2001 CriLJ 3329 : (2001) 6 SCC 181; Upkar Singh v. Ved Prakash ((2004) 13 SCC 292 : AIR 2004 SC 4320).
(x). to a counter claim by the accused in the first complaint, or on his behalf, alleging a different version of the said incident. In case there are rival versions in respect of the same episode, it would be treated as two different FIRs and investigation can be carried under both of them by the same investigating agency. (Upkar Singh v. Ved Prakash (2004) 13 SCC 292; Kari Choudhary v. Most.Sita Devi: (2002) 1 SCC 714 : AIR 2002 SC 441); Ashok Kumar Tiwari v. State of U.P (2008 CriLJ 4668 (Allahabad High Court)). (xi). where the FIRs are regarding independent and distinct offences, registration of a subsequent FIR cannot be prohibited on the ground that some other FIR had been filed against the petitioner in respect of other allegations made against him.(Rameshchandra Nandlal Parikh v. State of Gujarat, (2006) 1 SCC 732).
(xii). in cases where the same group of people commit offences in a similar manner in different localities falling under different jurisdictions. Even if these incidents are committed in close proximity of time, there can be separate FIRs. (Anju Chaudhary v. State of Uttar Pradesh: (2013) Cri.L.J. 776).
22. Bearing in mind the rule, against registration of two or more FIRs for the same occurrence or incident and the exceptions thereto, the contentions urged by the Counsel for the unofficial respondents, regarding the statutory rights of complainants, victims and aggrieved persons to have their respective complaints registered and investigated into, needs to be addressed. III. STATUTORY RIGHT OF A CITIZEN TO MAKE, AND OF THE POLICE OFFICER TO REGISTER, A COMPLAINT:
23. Sri N. Ramachandra Rao, Learned Senior Counsel, would submit that every information regarding a cognizable offence, given under Section 39(1) Cr.P.C, must be recorded in the form of an FIR; the statutory right under Section 39 Cr.P.C. cannot be denied to a complainant merely because a complaint, relating to the very same offence, was already intimated by any other person; and multiple FIRs, in the present case, is inevitable if lodged.
24. Section 154 Cr.P.C. places an unequivocal duty upon, and gives no discretion to, the police officer in charge of a police station to register an FIR on receipt of information that a cognizable offence has been committed. (Anju Chaudhary4; State of Uttar Pradesh v. Bhagwant Kishore Joshi27). Non- registration of a crime is violation of a human right. Articles 9, 10 and 11 of the Universal Declaration of Human Rights, 1948 (UDHR), Article 9 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Articles 14 and 21 of the Indian Constitution ensure the right to the procedure established by law and injunct that a person shall not be deprived of his dignity, life and liberty except in accordance with the fair procedure established by law'. Article 8 of UDHR and Articles 3(a), 3(c) of ICCPR, Articles 14 and 21 of Constitution read with Section 154 CrPC make it clear that, if a cognizable offence is not registered and investigated, it would result in violation of human rights. (Uppalapati Nirupa Rani v. Koganti Lakshmi28).
25. The statutory rights and duties of police officers to 'register' information relating to the commission of a cognizable offence, to investigate a case where the commission of a cognizable offence is suspected, and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report, are not circumscribed by any power of superintendence or interference by the Magistrate. Neither is sanction required from a Magistrate to empower the Police to investigate into a cognizable offence (Ram Lal Narang v. State (Delhi Admn29) nor should judicial authorities interfere in matters which are within the province of police officers and into which the law imposes upon them the duty of enquiry. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with the due observance of law and order is only to be obtained by leaving each to exercise its own function always, of course, subject to the right of the Court to intervene in an appropriate case. The Court's functions begin when a charge is preferred before it and not until then. (King Emperor3; Abhinandan Jha14; Sampat Lal10; S.N. Basak20).
26. Every citizen who has knowledge of the commission of cognizable offence has the duty to lay the information before the police under Section 39 Cr.P.C, (State of Gujarat v. Anirudhsing30), which obligates every person, who is aware of the commission of the offences mentioned in that Section, to give information to the nearest Magistrate or Police Officer. There is no statutory obligation on a citizen to inform the police about offences other than those mentioned in Section 39 Cr.P.C, (Dr. Satyasaheel Nandlal Naik v. State of Maharashtra31), as it merely casts a duty and an obligation to report offences mentioned therein, omission to discharge which is made penal. The said Section has been designed with the purpose of securing information relating to the commission of an offence with all expedition so that investigation should ensue. Once the information, relating to the commission of the offence has actually reached the Police Station the requirements of Section 39 Cr.P.C. are fully satisfied. Every eye-witness or every person who is in the know of the circumstances relating to an offence is not expected, thereafter, to go to the Police Station to give a report of what he saw. (State of Maharashtra v. Dashrath Lahanu Kadu32).
27. The offences which the petitioner is alleged to have committed are stated in FIR No.1 of 2013, registered at Nizamabad Police Station, to be under Sections 153, 153-A and 295-A IPC. The offence alleged against the petitioner in FIR No.5 of 2013 of Osmania University Police Station is under Section 153-A IPC. None of the aforesaid offenses are referred to in Section 39 Cr.P.C and the said provision has, therefore, no application to the facts of the present case. Even otherwise the statutory obligation under Section 39 Cr.P.C. is only to give information to the nearest Magistrate or police officer. There is no provision in the Cr.P.C. which casts a corresponding obligation on a police officer to register each such information, given by different persons, as separate FIRs.
IV. RIGHT OF A VICTIM OR A PERSON AGGRIEVED TO MAKE A COMPLAINT:
28. Sri N. Ramachandra Rao, Learned Senior Counsel, would refer to Sections 198 & 199 Cr.P.C. which relate to complaints filed by aggrieved persons, to contend that preventing a citizen, or an aggrieved person, from filing an FIR or a complaint would amount to denying a citizen his constitutional right. Learned Government Pleader for Home would submit that a second complaint is maintainable if the complainant is not the same. Sri N. Harinath, Learned Counsel, would submit that an "Offence" is said to have occurred or to have been committed only when a victim, as defined in Section 2(wa), surfaces and files a complaint regarding the said offence; any person who is offended on hearing the speech delivered by the petitioner, or any part thereof, would be a victim having the right to file a complaint against the accused; any victim can file a complaint, and any number of victims can file complaints if they are victims of an offence; in so far as registration of the F.I.R is concerned it would be the first complaint of the victim of the offence; the law has to be understood to mean that the same victim cannot file a second complaint for the same offence against the same accused for the same incident or offence; the grievance of each complainant would be different, and the quantum of injury caused to the said complainant can be dealt with only during the course of trial and not at the stage of filing the complaint; the right of a citizen to initiate proceedings cannot be fettered; each complaint filed by different victims has to be investigated as a separate crime, and the police have to register as many F.I.Rs as the number of complaints received by them; and the prayer sought for in the writ petition, if granted, would result in denial of justice to prospective complainants and prevent them from seeking redressal of their grievance in a court of law.
29. Every crime is considered an offence against the Society as a whole and not only against an individual even though it is an individual who is the ultimate sufferer. It is, therefore, the duty of the State to take appropriate steps when an offence has been committed. (State of Maharashtra v. Sujay Mangesh Poyarekar33). A criminal proceeding is not a proceeding for vindication of a private grievance, but is a proceeding initiated to punish the offender in the interests of society. It is for maintaining stability and orderliness in Society that certain acts are constituted as offences, and a right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. Punishment of the offender in the interests of society being one of the objects behind penal statutes enacted for the larger good of society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi. The locus standi of the complainant is a concept foreign to criminal jurisprudence. (Sheo Nandan Paswan v. State of Bihar34; R.S. Nayak v. A.R. Antulay35).
30. Registration of a complaint, under Section 154 Cr.P.C, is not victim- specific but is information-centric. Emphasis thereunder is on the information in the complaint and not on the complainant. Section 154(1) Cr.P.C stresses on the requirement of reducing every "information", relating to the commission of a cognizable offence, into writing i.e., registration of the "information" otherwise called an F.I.R. No matter who the informant is, as long as the information received relates to the commission of a cognizable offence, Section 154(1) Cr.P.C mandates the officer, in charge of a Police Station, to reduce the information into writing and enter the substance thereof in a book kept by such an officer. While the victim would, undoubtedly, be aggrieved on a congnizable offence having been committed against him, it is not only he but anyone else, in the know of such an offence having been committed, who can also convey such information to the officer in-charge of a police station. This can be better explained by way an illustration. If one offence is committed against several persons each of them would be a "victim" as defined in Section 2(wa) Cr.P.C, whereunder a person who has suffered any loss or injury caused by reason of the act or omission, for which an accused person is charged, is a "victim" including his or her guardian or legal heir. Any one of such victims can inform the police officer of a cognizable offence having been committed and such information is required to be reduced into writing (i.e., an FIR). Once an FIR is registered the investigation thereinto would include all victims and not merely the victim who has provided information to the police. The necessity of the other "victims" giving complaints becomes superfluous as the information, relating thereto, has already been recorded as an FIR. There is no provision in the Cr.P.C. which confers a right on each of the victims to make a complaint, or a corresponding obligation on the police officer to register each of them as an FIR, when an FIR has already been registered in the police station with respect to the said occurrence/incident.
31. The general rule is that any citizen has the right to bring offenders to justice irrespective of whether he is personally aggrieved by the offence or not as every crime is an offence against the State and the Society at large. Citizens have not only the right but the duty to ensure that offenders are brought to justice. The Legislature, in its wisdom, has however chosen to place restrictions on this right in specified cases on grounds of public policy. (M.P. Narayana Pillai v. M.P. Chacko36). Sections 198 & 199 Cr.P.C., are provisions where there is not only a restriction but also a prohibition against the courts taking cognizance otherwise than by a complaint from a person who is aggrieved by the offence. (M.P. Narayana Pillai36). 'Complaint' is defined in Section 2(d) Cr. P. C., to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report. A complaint need not mention the Sections under which it has been made. What is required to be stated in the complaint are the facts which would enable the Magistrate to take cognizance of the offence. (Shyam Lal v. State37). Section 2 Cr.P.C opens with the words 'unless the context otherwise requires' which indicate that, before every clause under Section 2, these words must be read. The word 'complaint', as defined in Section 2(d), means that, if in a particular context the word 'complaint' indicates some other sense other than the meaning to be conveyed under Section 2(d), the complaint need not be taken to be as defined under Section 2(d). The word 'complaint', used under Section 198 Cr.P.C, does not connote the meaning assigned to it under Section 2(d). The word 'complaint' has been used in Section 198 Cr.P.C., in the ordinary sense of the term, i.e. the expression of grief, statement of injury suffered, statement of injury or grievance. (Mahendra Kumar v. State of U.P.38).
32. A complaint under Sections 198 & 199 Cr.P.C. can be filed only by an "aggrieved person". In the Law Lexicon with legal maxims, it is stated that a "person can be said to be aggrieved if, apart from the general interest such a person has as a member of the public may have, he has a particular or special interest in the subject matter supposed to be wrongly decided." In the Judicial Dictionary, 13th Edition by K.J. Aiyar, the expression "Aggrieved person" is defined to mean a person who has got a legal grievance i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who has suffered some sort of disappointment. Any fanciful or sentimental grievance would not suffice, and there must be a legal grievance. (Parminder Kaur v. Joginder Kaur39; G. Narasimhan v. T. V. Chokkappa40; Raxaben v. State of Gujarat41). A person who does not have any legal grievance cannot be a "person aggrieved" within the scope of Section 198 Cr.P.C. (In re P. Kondiah42). Unlike certain other offences, cognizance of the offences referred to in Sections 198 and 199 Cr.P.C. can only be taken on a complaint given by an aggrieved person and not from any other informant. It is obvious from Section 199 Cr.P.C. that, before a person can be convicted for an offence, there should be a proper complaint against him by the persons specified therein; the complaint should have been made to a Magistrate with a view to his taking cognizance of the offence; and a report to the police does not amount to a complaint. (Shyam Lal37). Sections 198 and 199 Cr.P.C., create a bar which has to be removed before cognizance is taken. Once the bar is removed, on the proper person having filed a complaint, the Sections have worked themselves out. If there were any other restrictions the Code would have said so. Not having said so, one must treat the Section as fulfilled and having worked itself out. (Ashwin v. State of Maharashtra43). The offences referred to in the subject two FIRs are not among the offences referred to in Sections 198 and 199 Cr.P.C. and, as such, these provisions are of no relevance to the case on hand.
33. Wherever the Code requires only the victim, or the person aggrieved, to make a complaint and for the Magistrate to take cognizance thereof, it has so provided as in Sections 198 and 199 Cr.P.C. Unlike Sections 198 and 199 Cr.P.C, which enable the Court to take cognizance of an offence only upon a complaint made by a person aggrieved by the offence, Section 190(1)(a) does not place any such restriction and enables the Court to take cognizance on receipt of a complaint of facts from any person as long as the complaint alleges commission of a cognizable offence. The right conferred on the victim, except where the Cr.P.C has expressly provided otherwise, is only to have the offence investigated, and the offender tried and convicted. Investigation into the commission of a cognizable offence is, necessarily, preceded by information being received and recorded by an officer in charge of the police station. It is wholly unnecessary for the officer, in charge of a Police Station, to receive and record the complaint given by each "victim" of the very same offence, and it would suffice if information of the commission of a cognizable offence is recorded and is investigated from whatever source the information may have been received. The statutory right conferred on a victim or the statutory obligation cast on a police officer is only to have the information, relating to the commission of a cognizable offence, recorded and to have an investigation caused thereinto. No right is conferred under the Cr.P.C for each victim to insist that his complaint be registered under Section 154(1) Cr.P.C., even if the information, relating to the commission of the very same cognizable offence, has already been received by the officer in charge of the police station, has been reduced into writing, and its substance has been entered in the book kept by the said police officer. Once information is given to a police station and an FIR is registered, there is no further right given to any other complainant/victim/aggrieved person to have his complaint registered as another FIR provided, of course, that the complaint which he seeks registration of relates to the very same incident/event/occurrence (other than a counter- complaint) which has already been registered.
V. IS THE RIGHT OF OBJECTING, TO THE WITHDRAWAL OF PROSECUTION, CONFERRED ONLY ON THE PERSON WHOSE COMPLAINT IS REGISTERED AS AN FIR?
34. Sri N. Harinath, Learned Counsel, would submit that the right of a victim would be scuttled if his complaint is considered as a statement under Section 162 of Cr.P.C, as the state government may withdraw prosecution at any point of time thus affecting the rights of a citizen in getting his grievance redressed in a court of law.
35. As any citizen can lodge an FIR or file a complaint and set the machinery of the criminal law in motion, and his locus standi to do so cannot be questioned, there is no reason why a citizen, who finds that a prosecution for an offence against Society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against society, and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. (Sheo Nandan Paswan36).
VI. SCOPE OF SECTIONS 186 AND 210 CR.P.C:
36. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the provisions of Sections 154, 186 and 210 Cr.P.C are a clear pointer that the whole scheme of the Cr.P.C. contemplates one FIR, one investigation, one trial and one decision; Section 186 Cr.P.C, therefore, contemplates discontinuance of more than one inquiry/trial; and Section 210 Cr.P.C. permits only one proceeding to go on either separately or jointly.
37. On the other hand Sri S. Sriram, Learned Counsel, would submit that the scope of Section 186 Cr.P.C did not fall for consideration in T.T. Antony1; the code, which recognizes only 3 stages in a criminal proceeding i.e Investigation, Inquiry and Trial, is part substantive and part procedural; the term "trial", in contra-distinction to the term "inquiry" and "investigation", would indicate that the remedies, available at distinct stages of the prosecution, cannot be preponed or secured at a stage prior to the event, on the plea of the underlying intent of the Cr.P.C; Section 186 or Section 210 Cr. P.C., would require at least one of the FIRs to reach the post-cognizance stage; in the present case, admittedly, no court has taken cognizance as yet and pre- cognizance investigation is underway; Section 210 Cr. P.C. would not apply having regard to the fact that the FIRs are registered in two different police stations; Section 186 Cr.P.C. cannot be invoked at the pre-cognizance stage; a remedy expressly made available, to a person aggrieved, at a particular stage of the prosecution cannot be applied at any stage prior thereto contrary to the provisions of the Code; the remedy of Section 186 Cr. P.C. cannot be contended to substrate every stage of the prosecution; the code specifically makes available certain remedies at certain stages, such as " the right of the accused to be heard at the time of framing charges" (sections 227 and 228), and examination of the accused in inquiry or trial (section 313) which are specifically post-cognizance rights; Section 186 Cr.P.C, which is also a post-cognizance right, is not available at the stage of registration of FIRs; as the modes of taking cognizance of the offence have been enumerated under Section 190 Cr. P.C., the term "cognizance" in Section 186 cannot be restricted only to cases where the Magistrate has taken cognizance otherwise than on a police report; and such a reading would involve rewriting the legislation, and providing a restrictive meaning to the term "cognizance" for the purposes of Section 186 contrary to the express words and the intent of Cr. P.C.
38. Section 186 Cr.P.C empowers the High Court to decide which of the two or more Courts, which have taken "cognizance" of an offence, ought to enquire into or try that offence. Section 190 Cr.P.C enables a Magistrate to take cognizance of an offence either (a) upon receipt of a complaint of facts which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 190, in Chapter XIV Cr.P.C, lays down how cognizance of offences will be taken by a Magistrate. The word "cognizance" has not been defined in the Cr.P.C. The dictionary meaning of the word "cognizance" is - "judicial hearing of a matter". (Pastor P. Raju18). The expression "cognizance" merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is different from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 Cr.P.C. it is the application of the judicial mind to the averments in the complaint that constitutes cognizance. (Chief Enforcement Officer v. Videocon International Ltd.44; Bhushan Kumar v. State (NCT of Delhi)45; Swaraj Thackeray v. State of Jharkhand46). Taking cognizance does not involve any formal action or action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence'. (Pastor P. Raju18; R.R. Chari v. State of U.P.47). When the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender, he is said to have taken cognizance of the offence. (Pastor P. Raju18; Darshan Singh Ram Kishan v. State of Maharashtra48; Kishun Singh v. State of Bihar49). In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. (Pastor P. Raju18; State of W.B. v. Mohd. Khalid50). The word "cognizance" embraces within itself all powers and authority in the exercise of jurisdiction and in the taking of authoritative notice of the allegations made in the complaint or a police report or any information received that an offence has been committed. (Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel51). Trial follows cognizance and cognizance is preceded by investigation. This is the basic scheme of the Code in respect of cognizable cases. (Nirmal Singh Kahlon v. State of Punjab52; H.N. Righbud9). To attract Section 186 Cr.P.C, cognizance of the same offence should have been taken by two or more courts. Then only can the High Court enter upon and decide upon the Court where the enquiry or trial should take place. Where the cases are pending investigation in the respective police stations, and have not reached either of the Courts for enquiry or trial, the petitioner cannot invoke Section 186 Cr.P.C. (Veerapaneni Ravikanth v. The State of Andhra Pradesh53). Section 186 Cr.P.C. would apply to all the three forms of cognizance being taken by a Magistrate under clauses (a) to (c) of Section 190 Cr.P.C. and not merely when cognizance has been taken by a Magistrate upon receipt of a complaint of facts which constitutes such offence.
39. A bare reading of Section 210 Cr.P.C. makes it clear that, during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation. Investigation commences after receipt of information of a cognizable offence starting from Section 154 Cr.P.C. and culminates in the filing of a report under Section 170 Cr.P.C. After filing of the police report under Section 170 Cr.P.C. and before commencement of trial, the interregnum period can be called an "inquiry". (The State, Represented by the Deputy Superintendent of Police, SPE, CBI, Hyderabad v. Shri B.P. Acharya54; V.C. Shukla v. State, through CBI55; Sankaran Moitra v. Sadhna Das56). The object of enacting Section 210 Cr.P.C. is threefold: (i) it is intended to ensure that private complaints do not interfere with the course of justice; (ii) it prevents harassment to the accused twice; and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once. Before Section 210 can be invoked, the following conditions must be satisfied. (i) there must be a complaint pending inquiry or trial; (ii) investigation by the police must be in progress in relation to the same offence; (iii) a report must have been made by the police officer under Section 173; and (iv) the Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case. (Sankaran Moitra56). The Section proceeds on the basis that a complaint case and a case instituted on a police report, for the commission of the same offence, can proceed simultaneously and the Court would await the Police report before it proceeds with the complaint in such cases. The purpose again is to try these cases together, if they are in relation to the same offence, with a view to provide a fair and effective trial. (Samaj Partivarthan Samudaya8). It is difficult to accept the submission, urged on behalf of the petitioner, that the underlying principles of Section 186 and 210 Cr.P.C. should be made applicable to the present case, as both the FIRs are still under investigation and cognizance has not been taken by a Magistrate in either of the two complaints. VII. TESTS TO BE APPLIED TO DETERMINE WHETHER TWO FIRS RELATE TO THE SAME OR DIFFERENT INCIDENTS:
40. Let us now briefly refer to the tests which should, ordinarily, be applied to determine whether or not the two FIRs under consideration relate to the same incident/transaction. The law recognizes a 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 Cr.P.C. The expression 'same transaction', from its very nature, is incapable of exact definition. (Anju Chaudhary4; Mohan Baitha v. State of Bihar57). The distinction between two FIRs relating to the same incident, and two FIRs relating to different incidents or occurrences of the same incident, should be carefully examined. (Babubhai2). The merits of each case must be considered to determine whether a subsequently registered FIR is a second FIR relating to the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and fact depending on the merits of a given case. (Anju Chaudhary4). The test, to determine whether two FIRs can be permitted to exist, is whether the two incidents are identical or not. (Ram Lal Narang29).
41. The concept of "sameness" has been given a restricted meaning. In order to examine the impact of one or more FIRs, the Court 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; and whether they are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. It is only if the second FIR relates to the same cause of action, the same incident, there is sameness of occurrence and an attempt has been made to improvise the case, would the second FIR be liable to be quashed. In cases where every FIR has a different spectrum, and the allegations made are distinct and separate, it may be regarded as a counter complaint, but it cannot be stated that an effort has been made to improve the allegations that find place in the first FIR or that the principle of "sameness" is attracted. (Babubhai2; Surendra Kaushik v. State of Uttar Pradesh58).
42. It is not possible to enunciate any formula of universal application to determine whether two or more acts constitute the same transaction. They are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. For several offences to be part of the same transaction, the test 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. Where there is 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". Where two incidents are of different times with involvement of different persons, there is no commonality, the purpose thereof is different, they emerge from different circumstances, and would not form part of the same transaction. (Anju Chaudhary4).
VIII. IS THE TEST OF "SAMENESS" SATISFIED IN THE TWO FIRs UNDER CONSIDERATION IN THE PRESENT CASE?
43. Sri S. Sriram, Learned Counsel, would submit that the facts of the case are required to be perused, the test of "sameness" is to be applied, and only on a finding that the FIRs are the same, would judicial intervention be justified; having regard to the allegations contained in each of the FIRs the "test of sameness" is not satisfied; the allegations revolve around different spectrums of the same offence, and different facets of the offence committed by the petitioner by virtue of the contents of the speech delivered by him; in the nature of the contents of the speech delivered by the petitioner, and having regard to the range and myriad belief systems of the Hindu Community, different portions of the speech were aimed at affecting various sections of the Hindu community; and the facets of the speech noticed in the FIR at Nizamabad do not address other parts of the speech which are reflected in the FIR registered by the 5th respondent.
44. The suo motu complaint, registered as FIR No.1 of 2013 on 02.01.2013 by the II Town Police Station, Nizamabad against the petitioner herein for offences under Sections 153, 153A and 295A IPC, relates to a speech given by him at 8:00 PM on 08.12.2012 at a public meeting in Nizamabad. On the basis of information obtained from a compact disk, containing a video graph of the said meeting, the complaint records certain portions of the said speech. Another complaint lodged by the ninth respondent, before the IV Additional Chief Metropolitan Magistrate, Hyderabad, alleges that, on 08.12.2012 at 10 PM and on 09.12.2012 at about 9 AM, four TV channels had telecast the highly provocative speech of the petitioner which was derogatory to one religion; and the telecast was seen by him within the local area of Osmania University P.S. The complaint refers to the very same speech delivered by the petitioner on 08.12.2012 at Nizamabad including certain parts thereof which are, allegedly, not referred to in the complaint in FIR No. 1 of 2013 of II Town Police Station, Nizabamad. The complaint of the ninth respondent was referred by the IV Additional Chief Metropolitan Magistrate, Hyderabad, to the Station House Officer, Osmania University Police Station, on 03.01.2013 and was registered thereat as FIR No.5 of 2013 on 04.01.2013 for the offence under Section 153-A IPC.
45. Except to state that the complainant had watched the speech, delivered at Nizamabad on 08.12.2012, on television the incident/event in both the complaints relate to the very same speech given by the petitioner. Both the complaints have a common purpose and design, and they relate to the same event. The cause of action is the same, there is sameness of occurrence and they relate to the same incident i.e., the very same speech. The principles of "sameness" is, therefore, attracted. The mere fact that FIR No.1 of 2013 before the Nizamabad police station, narrates certain parts of the speech which the petitioner delivered on 08.12.2012, whereas the complaint registered as FIR No. 5 of 2013 before the Osmania University Police Station relates to some other parts of the very same speech given on 08.12.2012, is of little consequence as, on registration of a complaint, the investigating officer is bound to examine all parts of the speech during the course of his investigation and form an opinion only thereafter whether or not the petitioner should be charged of some other offence in addition to, or other than, those referred to in the complaint registered as an FIR. If both the complaints, in the case on hand, had been registered in the same police station, the second complaint would have necessitated being quashed and treated as a statement under Section 162 Cr.P.C. The problem which this Court is however confronted with, in the present case, is that one complaint (suo motu complaint) was registered as an FIR at Nizamabad II Town Police Station while the other was registered as a complaint in Osmania University police station, that too pursuant to its being referred for investigation by the Magistrate under Section 156(3) Cr.P.C. IX. TWO FIRS REGISTERED IN TWO DIFFERENT POLICE STATIONS BY TWO DIFFERENT COMPLAINANTS AGAINST THE SAME ACCUSED FOR THE SAME INCIDENT:
46. Let us now refer to the cited judgments of other High Courts where the complaint lodged in one police station was quashed on the ground that another complaint was already lodged in a different police station for the same offence or the Court in the other place had taken cognizance of the offence. In Kashi Nath Choudhary v. The State Of Bihar59 the Patna High Court held:- "..............On the basis of reasoning and decisions in T.T. Antony, it would now be apparent that the investigation of the second FIR i.e. Begusarai P.S case No. 274/2004 dated 16.9.2000 is unwarranted as the case was instituted for the same incident and for the same facts. However, this does not preclude the investigating authority/agency from making further investigation or taking action against any of the persons who are found to be involved in the occurrence during the investigation or trial of the case............"
47. In Subhash Narayan Koli @ Saindane v. The State of Maharashtra60 the Bombay High Court observed:-
"...........From the observations of the Apex Court in the above referred judgment T.T. Antony1, it is clear that there cannot be a second FIR in respect of same cognizable offence and same incident or occurrence. From the facts which are discussed in above paragraphs, it is clear that that for the recovery of contraband from the premises situated at Jainabad Walmikinagar Jalgaon, kept by the applicants, the applicants are shown as accused in CR No.56/2006 registered with Bajarpeth police station. Again for the same seizure of contrabands they are also shown accused in CR No.19/2006 registered with Shanipeth police station, Jalgaon, which is not permissible in law............"
48. In Balwinder Singh v. State of Haryana61 prosecution was launched against the petitioner twice regarding theft of the same motor cycle, the first under FIR No. 511 dated 5.8.2009 at P.S. City Karnal, and the second in FIR No. 278 dated 31.8.2009 at Gohna P.S. Following the judgment of the Supreme Court in T.T. Antony1, the Punjab & Haryana High Court held that there can be only a single trial for a single offence, and cognizance of the offence can be taken by a court only once; in the present case, cognizance had already been taken by the I Class Judicial Magistrate, Gohana in FIR No. 278 dated 31.8.2009; there can be more than one information pertaining to the same incident in different police stations, but the petitioner can be tried only in one case; in the second FIR, cognizance has already been taken by the court; therefore, in the interest of justice and to prevent abuse of the process of the court, the investigation conducted in FIR No. 511 dated 5.8.2009, under Section 379 IPC at P.S. City Karnal, be treated as investigation in FIR No. 278 dated 31.8.2009 as cognizance had not yet been taken in FIR No. 511 dated 5.8.2009; and the concerned court should not take cognizance of the said FIR, and should send the challan to the court of the Judicial Magistrate, Ist Class, Gohana for trial along with FIR No. 278 dated 31.8.2009.
49. Following the law laid down in T.T. Antony1, the Jharkhand High Court, in Bishnu Dayal @ Vishnu Dayal Gupta and Naresh Kumar Gupta v. The State of Jharkhand62, held that, since there can be no second F.I.R, 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; a single offence cannot be investigated repeatedly by different police stations which Cr.P.C. does not permit; and, since the Ranchi trial is going to be concluded, the petitioners cannot be subjected to a fresh trial on the basis of a second F.l.R. at Jamshedpur.
50. All the aforesaid judgments, wherein the second complaint was quashed, followed the law laid down in T.T. Anthony1 which related to a situation where two complaints were lodged in the very same police station. Would it make any difference if two complaints, relating to the same occurrence/incident, are lodged in two different police stations as in the case on hand?
51. Both the Learned Government Pleader for Home and Sri N. Ramachandra Rao, Learned Senior Counsel, would submit that there is no prohibition under the Code for registering an FIR for the same incident in another Police Station; there is no bar to register a case when there is no dispute regarding the territorial jurisdiction of both the police stations to register the complaint; and the remedy available to an accused is to file an application under Section 407 of the Code before the High Court or to seek anticipatory bail under Section 438 Cr.P.C. Sri S. Sriram, Learned Counsel, would submit that, as the FIRs were registered in two different police stations, the FIR registered by the 5th respondent is not based on the result of the investigation in the first FIR; and the subsequent FIR was registered at a different police station at the instance of a different complainant.
52. On the other hand Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, since the Cr.P.C. does not contemplate registration of more than one FIR in respect of one crime, it does not make any express provision for dealing with this unprovided for situation; the provisions of the Cr.P.C. do not expressly stipulate or permit initiation or continuation of multiple prosecutions; on the contrary the scheme of the Cr.P.C, particularly Section 154 thereof, provides for only one FIR to be registered for setting the criminal law into motion; the scheme of Chapter XII Cr.P.C, commencing from Section 154 to Section 173 requiring the police to proceed to the spot of the crime and submit a report in default to the Magistrate (Section 157), the manner of conduct of investigation and filing a report before the Court (either under Section 169 or 173), contemplate that this whole process is to be undergone by one Police Station; as long as there is one crime, there can only be one FIR and one investigation; the very fact that Section 186 discontinues one case would mean that permitting multiple investigations to continue would be a useless or an empty formality as eventually only one trial can be conducted; the logic and reasoning in T.T. Anthony1 and Babu Bhai2, in respect of same Police Station, would apply a fortiori to different police stations also, as the difficulties and abuse in relation to multiple FIRs within the same Police Station would apply in a far larger proportion in respect of different Police Stations; the exceptions carved out in subsequent judgments do not include cases where the crime is one and the versions are not substantially different; different parts of the same incident, presented by different persons as complaints, would not amount to different versions requiring different FIRs to be registered; and Section 71 IPC indicates how a single offence should be construed.
53. Would the rule, prohibiting two FIRs being registered under Section 154(1) Cr.P.C, for the same offence/incident at the same police station, apply also in cases where two complaints are lodged in two different police stations? In order to answer this question, it is necessary to examine the provisions of the Cr.P.C. relating to the territorial jurisdiction of police stations/Magistrates. X. TERRITORIAL JURISDICTION OF POLICE OFFICERS TO REGISTER COMPLAINTS & INVESTIGATE AND OF MAGISTRATES/COURTS TO TAKE COGNIZANCE OF AND TRY OFFENCES:
54. Section 156(1) Cr.P.C enables an officer in charge of a Police Station, even without an order of a Magistrate, to investigate any cognizable offence which a Court, having jurisdiction over the local area within the limits of such station, has the power to inquire into or try under the provisions of Chapter XIII Cr.P.C. Section 2(j) Cr.P.C defines "local jurisdiction", in relation to a Court or a Magistrate, to mean the local area within which the Court or Magistrate can exercise all or any of its or his powers under the Cr.P.C, and such local area may comprise the whole of the State or any part of the State as the State Government may, by notification, specify. The territorial limits of the area within which the Police Officer may investigate a cognizable offence, even without the order of the Magistrate, is confined to the local area of the Court having jurisdiction to inquire into or try such offences.
55. A complaint, in a criminal case, follows the place where the cause arises. (Rasiklal Dalpatram Thakkar v. State of Gujarat63). "Offence" means an act or instance of offending'; `commit an illegal act' and illegal means, `contrary to or forbidden by law'. "Offence" has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover offences punishable under the I.P.C. or under a special or a local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897. (Proprietary Articles Trade Association v. Attorney General for Canada64; Thomas Dana v. State of Punjab65; Jawala Ram v. The State of Pepsu (now Punjab)66; and Standard Chartered Bank v. Directorate of Enforcement67; S. Khushboo v. Kanniammal68). Offences are, in their nature, local and the jurisdiction of the Criminal Court is also local. The competence of a forum to take cognizance of or to inquire into or try an offence is determined by the place where the offence is committed. A Magistrate, therefore, has no power by virtue of Section 177 of the Code to try an accused for an offence committed wholly outside the limits of his jurisdiction. (State v. Dhulaji Bavaji69). Section 177 Cr.P.C adopts the Common Law of England that all crimes are local and justiciable only by the local courts within whose jurisdiction they are committed. The General Rule of Lex fori, as contained in Section 177 Cr.P.C, is modified by the exceptions or alternatives provided for in the Sections, following Section 177, under Chapter XIII Cr.P.C. (Charu Chandra Majumdar v. Emperor70; B. Patnaik v. K.A.A. Brinnand71). The word "ordinarily" in Section 177 means "except where provided otherwise in the Code". (Ramnarayan Baburao Kapur v. Emperor72). Sections 177 to 184, in Chapter XIII CPC, indicate the places where certain alleged offences should be tried. The ordinary rule as to jurisdiction, under Section 177 Cr.P.C, is that it is the area within which the offence is committed, and not the place where the offender may be found, that determines the Court which has jurisdiction to try the offence. (Venkataraman v. Pushkalammal73; In re Kochunni Elaya Nair74; Mahi Pal v. State of Haryana75). The Legislature has used the word "shall" in Section 177, while it has used the word "may" in the other Sections in Chapter XIII Cr.P.C. If there be an offence which falls under more than one of these Sections (i.e., Section 177 to 184), it may be tried at any one of the places mentioned therein. (Banwarilal Jhunjhunwalla v. Union of India76). The provisions of Chapter XIII Cr.P.C, i.e Sections 177 to 186 Cr.P.C, make it clear that, while cognizance of an offence can be taken by two or more Courts in relation to one incident/event/crime, there can only be one inquiry or trial. The jurisdiction aspect becomes relevant only when the question of enquiry or trial arises. It is fallacious to think that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. (Trisuns Chemical Industry v. Rajesh Agarwal77; Motorala Incorporated v. Union of India78). A Magistrate, taking cognizance of an offence, need not have territorial jurisdiction to try the case as well. The power of a Magistrate of the First Class, to take cognizance of the offence, is not impaired by territorial restrictions. After taking cognizance he may have to decide the Court which has jurisdiction to enquire into or try the offence. That situation would reach only during the post cognizance stage, and not earlier. (Trisuns Chemical Industry77; Ashok Singhal v. State of U.P79). The Magistrate cannot be expected to examine the question of his jurisdiction closely at the initial stage when he has taken cognizance and has issued process, but the accused have not yet made their appearance before the Court. What is expected of a Magistrate is the prima facie satisfaction about his having jurisdiction. (Motorala Incorporated78).
56. The question which then arises for consideration is whether, in cases where jurisdiction is conferred on two or more Courts, parallel investigations can be carried on by each of the police stations falling within the local area of each such Court having jurisdiction to inquire into and try such offences? It is in this context that the submissions regarding "cause and consequence" must be examined.
XI. "CAUSE AND CONSEQUENCE" - SECTION 153 IPC READ WITH SECTION 179 AND 196 CR.P.C.
57. Sri N. Ramchander Rao, learned Senior Counsel, would submit that the offences alleged in both the complaints are offences against a section of the society, and not against any particular person; when offences are committed against a single person i.e., an individual or a juristic person, the FIR has to be registered by the aggrieved person only and, in such a situation, two FIRs can be permitted; the law laid down in T.T. Anthony1 will apply only in cases where the offence is against a group or any identifiable group; and, in such an event, any aggrieved person in the said group may file an FIR or a complaint. Sri S. Sriram, Learned Counsel, would submit that the offence alleged in the present case is one of "cause and consequence" implicit in Section 153A; any ramifications arising out of Section 179 Cr. P.C., would not be a ground for interference, at the instant premature stage, since "trial" in the instant case has not begun; the offence under Section 153-A IPC is not complete once the speech is given but is completed only when the speech reaches the person or group of persons who were intended to be hurt by the said speech as in the case of defamation; there cannot be any territorial limits in the very nature of such offences; having regard to the content of the offence enumerated in Section 153A IPC, more particularly 153A(1)(c), it is clear that the offence can be registered on a consequence being felt by the targeted community; while the facet of Section 153A(1)(a) and 153A(1)(b) can be contended to be concluded with the speech being delivered, which is a matter of "law and order assessment" by the State, the "feeling of fear or alarm" caused in the minds of the affected community can only be prosecuted by such persons who have felt such fear or alarm; Section 196 Cr.P.C. only bars cognizance being taken in respect of certain offences including Section 153-A, but does not bar filing of a subsequent FIR or causing an investigation thereinto or the filing of a report u/s 173 Cr.P.C; the very fact that Section 196 Cr.P.C. contemplates grant of State permission, before cognizance is taken of the offences enumerated therein, reinforces the contention that there can be a complainant, other than the State, in respect of an offence under Section 153-A; it cannot be validly contended in law that the State is the prosecutor and the first registered FIR ought to be construed as an FIR representing the cause of any of the subsequent complainants who have felt "alarm" or "fear" arising out of such speech; and Section 196 and Section 186 Cr.P.C. contemplate more than one FIR, not necessarily with the State being the complainant in both the FIRs. Sri N. Harinath, Learned Counsel, would submit that there is nothing in the code which prevents filing of multiple complaints by multiple victims in special circumstances, such as the case on hand, wherein the offence relates to a hate speech and is not a local issue, but is an offence against society; it is an offence against public administration and public morality which affects the public and society at large; and, as the speech has given rise to multiple offences, multiple FlR's are maintainable.
58. On the other hand Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the offence, in relation to a speech attracting Section 153-A, 295-A or 505(2) IPC, is complete when the speech is made; the consequence thereof is immaterial; when the consequence is of relevance, as in Section 153 IPC, it is specifically provided that, if the act were to lead to a consequence, then the offence and punishment would be as provided; the distinction in the language between Section 153 and 153-A is apparent; therefore the offence/crime in relation to the alleged incident can be only one; the contention that Section 153-A IPC inheres the possibility of multiple complaints is premised on a wrong interpretation of Section 179 Cr.P.C. by referring to "cause and consequence" or "cause and effect" theories; Section 179 is attracted only when the "consequence or the effect" combines with "the cause" to complete the offence; unlike Section 153 IPC, the consequence or effect, for the alleged offence under Section 153-A, is irrelevant; and this contention is discountenanced by Section 196 Cr.P.C. which requires prior sanction from the Government for initiating prosecution under the relevant Sections.
59. It is wholly unnecessary for this Court to examine the rival submissions, on the scope and purport of Section 153A IPC, as the Legislature has made a specific provision in the Cr.P.C. wherever it intended a particular procedure to be followed in respect of certain offences under the IPC. In the absence of an express provision to the contrary, the procedure prescribed under the Cr.P.C would apply to all offences, under the IPC, as are listed in the first schedule to the Cr.P.C. Section 196(1)(a) Cr.P.C prohibits cognizance being taken of offences, punishable under Sections 153A, 295A and 505(1) IPC, except with the previous sanction of the Central or State Governments. As the offences are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the Government is concerned, the object of Section 196(1) Cr.P.C is to prevent unauthorized persons from intruding in matters of the State and to ensure that such prosecutions, for reasons of policy, shall only be instituted under the authority of the Government. The underlying policy is evident on a reading of the offences enumerated in Section 196(1) Cr.P.C. in respect of which prior sanction is a must before cognizance of such offence can be taken. (State of Karnataka v. K. Rajashekara80). The object of Section 196 Cr.PC is to ensure prosecution only after due consideration by the appropriate authority so that frivolous or needless prosecutions are avoided. (Inguva Mallikarjuna Sharma v. The State of Andhra Pradesh81).
60. The opening words of Section 196(1) Cr.P.C. are "No court shall take cognizance" and, consequently, the bar created by the provision is against the taking of cognizance by the court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police, on completion of investigation, under Section 173 CrPC. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of the Section and no illegality of any kind would be committed. (Pastor P. Raju18). The restriction placed by Section 196(1)(a) Cr.P.C, in relation to an offence under Section 153A IPC, is only on cognizance being taken by the Court without obtaining sanction from the Central or State Governments. Absence of any other express provision to the contrary in the Code can only mean that the procedure prescribed under Section 154(1) for registration of complaints, and under Sections 156 and 157 Cr.P.C for investigation of offences, would apply to the offence under Section 153A IPC also. Consequently one complaint can alone be registered as an FIR, and one investigation carried out even in respect of such an offence. XII. REGISTRATION OF TWO COMPLAINTS IN TWO DIFFERENT POLICE STATIONS FOR THE SAME OFFENCE/INCIDENT - WOULD IT VIOLATE THE FUNDAMENTAL RIGHTS OF THE ACCUSED?
61. Would permitting two complaints, relating to the very same incident/event/transaction, being registered in two different police stations and for parallel investigation being carried on pursuant thereto violate the fundamental rights of the accused under Articles 20(2) and 21 of the Constitution of India?
62. Sri S. Niranjan Reddy, Learned Counsel for the petitoner, would submit that registering a second FIR would violate a person's right under Article 20(2) of the Constitution of India; the expression "prosecuted and punished" used therein would mean one continuous process commencing from initiation of prosecution (i.e., filing an FIR) till the stage of punishment (when judgment would be pronounced by the Court); the word 'prosecution' also means and includes conduct of investigation and, hence, multiple FIRs constituting multiple prosecutions would violate the petitioner's fundamental rights under Article 21 of the Constitution of India; and the burden of showing that the procedure established by law permits multiple prosecutions is on the State. On the other hand Sri S. Sriram, Learned Counsel, would submit that as registration of an FIR is merely to set the criminal law in motion, and to secure inquiry and trial into a cognizable offence, it cannot be said to have prejudiced the accused or to have violated his fundamental rights.
63. "In initio" means in the beginning. The dictionary meaning of "initiation" is cause to begin. The term "prosecution" would include institution or commencement of a criminal proceeding. It may also include an inquiry or investigation. In its wider sense, the word "prosecution" means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence. The term "prosecution has been instituted" would not mean when charge-sheet has been filed and cognizance has been taken. It must be given its ordinary meaning. (State, CBI v. Sashi Balasubramanian82; Ashok Singhal79).
64. The ambit and content of the guarantee, under Article 20(2) of the Constitution, are much narrower than those of the common law rule in England or the doctrine of "Double Jeopardy" in the American Constitution. Article 20(2) of the Constitution does not contain the principle of autrefois acquit. Our Constitution-makers did not think it necessary to raise this part of the common law rule to the level of a fundamental right, and thereby make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order to enable a citizen to invoke the protection of clause (2) of Article 20 of the Constitution there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. (S.A. Venkataraman v. Union of India83; Sangeetaben Mahendrabhai Patel v. State of Gujarat84). As both the complaints in F.I.R. No. 1 of 2013 before Nizamabad II Town Police Station and F.I.R. No. 5 of 2013 before Osmania University Police Station are still at the pre-cognizance stage, the petitioner cannot be heard to complain that his fundamental rights under Article 20(2) of the Constitution has been violated.
65. The criminal justice administration system in India places human rights and dignity for human life on a high pedestal. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law, should be conducted in a manner so as to draw a just balance between the citizen's right under Articles 19 and 21 and the expansive power of the police to make investigation. These are the fundamental canons of our criminal jurisprudence and are in conformity with the constitutional mandate contained in Article 21 of the Constitution of India. (Babubhai2; Manu Sharma v. State (NCT of Delhi)85; Nirmal Singh Kahlon52).
66. Article 21 of the Constitution of India stipulates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness is an essential element of equality or non-arbitrariness which pervades Article 14. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right, just and fair", and not arbitrary, fanciful or oppressive. Otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. (Maneka Gandhi v. Union of India86).
67. The words "personal liberty", under Article 21 of the Constitution, are of the widest amplitude covering a variety of rights which goes to constitute the personal liberty of a citizen. Its deprivation can only be in accordance with the procedure prescribed in the Criminal Procedure Code conformable to the mandate of the Supreme Law, the Constitution. (State of Bihar v. P.P. Sharma87; Babubhai2). Registration of a second FIR in the same police station, in respect of an offence or different offences committed in the course of the same transaction, is not only impermissible but also violates Article 21 of the Constitution. (T.T. Anthony1; Amitbhai Anilchandra Shah25).
68. As registration of two complaints relating to the very same incident/event in two different police stations (except in cases where the Rule referred to hereinabove, against registration of two FIRs for the same incident/offence, will not apply), would result in parallel investigations being caused there into, it is necessary to briefly note the powers of a police officer in causing investigation pursuant to information having been received of the commission of a cognizable offence. Section 41(1) Cr.P.C. empowers any police officer, without an order from a Magistrate and without a warrant, to arrest any person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he had committed a cognizable offence. While Section 41(1)(b) circumscribes the satisfaction to be arrived at by the police officer before making the arrest it is evident that, subject to the limitation in Section 41(1)(b), the power to arrest an accused is conferred on in every police officer investigating a cognizable offence.
69. Ordinarily the court will not interfere with the investigation of a crime or with the arrest of an accused in a cognizable offence. Arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, and to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. (Parvinderjit Singh v. State88). The word 'arrest', is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. The word 'arrest', when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. (Directorate of Enforcement v. Deepak Mahajan89). At the stage of investigation and initial arrest the rule of audi alteram partem has no application and the accused has no right of notice or hearing before his arrest, if any, in a cognizable case. (Ajeet Singh v. State of Uttar Pradesh90; Union of India. v. W.N. Chadha91). Likewise theinvestigating officer is given the power, under Section 41-A Cr.P.C, to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such a person orally and to reduce his statement into writing in the manner provided in Section 162. (H.N. Rishbud9).
70. Multiple investigations by multiple police stations could well result in an accused, who can eventually be tried and punished for the said incident only once, being subjected to repeated arrests by different investigating officers, and being called upon to appear before different police officers attached to different police stations, in connection with the investigation of the same offence. While the power to arrest an accused is conferred on the investigating officer under Section 41 Cr.P.C, construing the provisions of the Cr.P.C. as enabling different investigating officers attached to different police stations to, one after the other, arrest the same person for the same incident/occurrence would not be a fair or a just procedure. The petitioner's fundamental rights, under Article 21 of the Constitution of India, would be violated as he would not only face the threat of imminent and numerous arrests by different investigating agencies for the same incident/occurrence, but his liberty would also be restricted on his being required to appear before different investigating agencies conducting parallel investigation into the same incident.
71. Sri N. Ramachandra Rao, Learned Senior Counsel, would however contend that the accused has the protection against multiple FIRs by seeking multiple bails under Section 438 Cr.P.C. It is no doubt true that any person, who faces a reasonable threat of being arrested, can seek anticipatory bail under Section 438 Cr.P.C. It is only in exceptional cases that the power under Section 438 Cr.P.C. is to be exercised. The power, being important in nature, is entrusted only to the higher echelons of the judiciary i.e., the Court of Session or the High Court. (D.K. Ganesh Babu v. P.T. Manokaran92). No blanket order can be passed under Section 438 CrPC to prevent the accused from being arrested at all in connection with the case. Anticipatory bail is given for a limited duration to enable the accused to surrender and obtain regular bail. (HDFC Bank Ltd. v. J.J. Mannan93; Adri Dharan Das v. State of W.B94; Salauddin Abdulsamad Shaikh v. The State of Maharashtra95).
72. Should a person be made to undergo the ordeal of an imminent arrest by different investigating officers attached to the different police stations for the same offence? Should he, each time a complaint is registered against him in a police station for which a complaint has already been registered in another, be required to seek anticipatory bail under Section 438 Cr.P.C.? Would his being asked to appear before different investigating officers, pursuant to a notice issued under Section 41-A Cr.P.C., in connection with the very same incident, not violate his fundamental right of liberty under Article 21 of the Constitution of India? The answer to all these questions can only be in the negative.
XIII. INTERPRETATION OF STATUTES: COURTS SHOULD LEAN IN FAVOUR OF A CONSTRUCTION WHICH WOULD UPHOLD THE CONSTITUTIONALITY OF THE STATUTORY PROVISION:
73. If registration of multiple complaints, and multiple investigations being caused pursuant thereto, by different police stations would result in violation of the fundamental rights of an accused under Article 21 of the Constitution of India should this Court then proceed on the premise that, since there is no express provision in the Cr.P.C, prohibiting separate complaints being registered at the instance of different complainants for the same offence/incident, it should be presumed that such complaints are permitted or should this Court hold that, as only one enquiry or trial is provided for under the Code for one incident/event, there is an implicit bar under the Code for more than one complaint being registered, and investigation being conducted there into?
74. The provisions of the Act (in the present case - the Cr.P.C) must be interpreted in a manner so that its constitutionality is upheld. (Aslam Mohammad Merchant v. Competent Authority96). The rule of presumption in favour of constitutionality, as a principle of construction, is that if two meanings are possible then the courts will reject the one which renders it unconstitutional and accept the other upholding the validity of the impugned legislation. (State of Rajasthan v. Basant Nahata97; Kerala State Housing Board v. Ramapriya Hotels (P) Ltd.,98; State of M.P. v. Chhotabhai Jethabhai Patel & Co.,99; Kedar Nath v. State of Bihar100). If the language is rather not clear and precise as it ought to be, the attempt of the court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable. (State of Karnataka v. Hansa Corpn.101; Seaford Court Estates Ltd. v. Asher102).
75. The Code neither expressly provides for, nor does it explicitly bar, two or more investigation agencies investigating a single incident giving rise to one or more offences. Does any provision of the Cr.P.C, by necessary implication, either enable or prohibit such investigation? As offences were hitherto local, an investigation being caused thereinto was also "local" i.e. it was only the police station, within whose territorial limits the offence was committed, which was investigating the offence. While the possibility of more than one Court taking cognizance of an offence was envisaged by the framers of Cr.P.C., it is evident that as offences and investigations caused pursuant thereinto were hitherto local, they did not foresee or visualise the possibility of multiple complaints being registered in different police stations for the same incident/event or two or more police Stations investigating the same offence and, as such, no express provision is made in this regard. Provision of a remedy under Section 186 Cr.P.C, to ensure that there is only one enquiry or trial for one offence/incident, does not mean that the Code, by necessary implication, permits two or more police stations to investigate the same offence as it is implicit in Section 154 Cr.P.C, and the underlying theme of Chapters XII to XV of the Code, that there can be only one complaint, one investigation, one inquiry, one trial and one punishment for an offence.
76. Accepting the submission of Sri S. Sriram, Learned Counsel, that the Legislature did not intend placing a similar restriction as stipulated under Section 186 Cr.P.C. on an investigation by two or more police stations or on cognizance being taken by two or more Magistrates for the same offence, would result in violation of the petitioner's fundamental rights under Article 21 of the Constitution of India as parallel investigations, by different Police Stations, would not only result in his being forced to appear before different Police Officers attached to different police stations, on a notice being issued to him under Section 41-A Cr.P.C, it may also result in his being arrested by different investigating officers, of different Police Stations, in the exercise of their powers under Section 41 Cr.P.C. That apart, no useful purpose would be served in multiple investigations being caused into one offence, by two or more investigating officers attached to different police stations, when it is only one of reports submitted under Section 173 Cr.P.C which would, eventually, be inquired into and tried by one Court.
77. As Section 186 Cr.P.C. has to be so interpreted as to be in conformity with the provisions of the Constitution, and not to fall foul thereof, the said provision must not so be construed as, by necessary implication, to permit parallel/multiple investigations, and its resultant consequences, for the very same incident. The provisions of Chapter XIII Cr.P.C., which provides for the manner in which an enquiry or trial should take place in different situations, are made only to ensure that no person, alleged to have committed a cognizable offence, goes scot-free and that he should be tried and punished for the offence by the Court having jurisdiction to inquire into and try such offences. Even in cases where two or more police stations have territorial jurisdiction to register FIRs in relation to the very same incident/event, it is only one of such police stations which can register a complaint in relation thereto under Section 154(1) Cr.P.C and cause an investigation under Sections 156 and 157 Cr.P.C. The complaint lodged in any other police station must be transferred to the police station where an FIR is already registered, and should be treated as a statement under Section 162 Cr.P.C.
78. The question which then arises is which of the complaints registered in the two police stations, in the instant case, should be permitted to remain as an FIR and which of them should be transferred to the other and be treated as a statement under Section 162 Cr.P.C? Before examining this issue, it is necessary to deal with the contention that this Court should desist from resorting to such an exercise at the present premature stage when the complaints in both the FIRs are still under investigation.
XIV. IS THIS WRIT PETITION PREMATURE?
79. Both Sri N. Ramachandra Rao, Learned Senior Counsel and Sri N. Harinath, Learned Counsel, would submit the judiciary should not interfere with the police in matters which are within their province, and into which the law imposes on them the duty of inquiry; this is not the stage where this Court's jurisdiction can be invoked by the petitioner; and the writ petition is premature. Sri C. Subba Rao, Learned Counsel, would submit that the High Court should not tinker or tamper with the procedure established by law, more so as the complaints are still under investigation; this Court must await completion of the process of investigation and can interfere, if at all, only after investigation into the complaints are completed; and registration of multiple FIRs would only result in a comprehensive investigation into all aspects by different agencies which may assist the Court to take a view of the matter either under Article 226 of the Constitution or 482 Cr.P.C. or during the trial of the case itself. Sri S. Sriram, Learned Counsel, would submit that, after the investigating agency submits a report u/s 173 Cr.P.C, it is for the Magistrate to examine whether all the facts relating to the said offence are covered by the multiple FIRs or not; at the stage of investigation, there cannot be any interference by Courts; the substantive rights under the code can be enforced only after cognizance of the offence is taken; in the present case FIRs have merely been registered and pre- cognizance investigation has been ordered under Section 156(3); and the scheme of the Cr.P.C. does not require the accused to be heard at the stage of registration of the FIR, or at the time of investigation, or at a stage when the court is taking cognizance of the complaint. On the other hand Sri S. Niranjan Reddy, Learned Counsel, would submit that the Writ Petition is not premature as mere apprehension, of an imminent violation of a fundamental right, is sufficient to invoke the jurisdiction of this Court.
80. It is no doubt true that this Court should exercise due circumspection and caution, and not unnecessarily interfere when a complaint into a cognizable offence is still under investigation, as the possibility of another incident, giving rise to a similar or a different set of offences, coming to light during the course of such an investigation cannot be ruled out. It cannot, however, be lost sight of that in cases where multiple investigations into the very same offence may result in the possibility of the fundamental right of an accused, under Article 21 of the Constitution, being violated non-interference may well result in failure of this Court to discharge its constitutional obligations of safeguarding the fundamental rights of citizens. The right to life and liberty of a citizen imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of society, including the State, not to infringe that right. Post-violation resort to Article 226 is a remedy for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right. (S.M.D. Kiran Pasha v. Govt. of A.P.,103). It would be wholly inappropriate for the Court, in cases where multiple complaints are registered in different police stations in relation to the very same incident, to exercise restraint, await completion of investigation and permit violation of the fundamental rights of a citizen under Article 21 of the Constitution of India.
XV. IS THERE ANY PROVISION IN THE CRPC FOR TRANSFER OF COMPLAINTS FROM ONE POLICE STATION TO ANOTHER?
81. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would place reliance on Naresh Kavarchand Khatri v. State Of Gujarat104; Rasiklal Dalpatram Thakkar v. State of Gujarat105; and Satvinder Kaur v. State (NCT of Delhi)106 to contend that power is conferred on the statutory authorities, under the Cr.P.C, to direct transfer of investigation from one Police Station to another in the event it is found that they lack jurisdiction in the matter; and the investigation, being conducted by an Investigating Officer who lacks territorial jurisdiction, should be transferred by him to the police station having the requisite jurisdiction. Learned Counsel would fairly state that there is no specific provision in the Cr.P.C which enables an officer, in-charge of a police station, to transfer complaints registered in his Police Station to another, even if he lacks territorial jurisdiction to register the complaint and proceed with investigation.
82. While the underlying theme, of Chapters XII to XV Cr.P.C, is that there should be one investigation for one crime, the Code has not expressly stipulated any procedure for the manner in which complaints, relating to the same crime lodged in two different Police Stations by two different complainants against the very same accused, should be dealt with. In this context it is useful to examine the provisions of the Cr.P.C. relating to transfer of cases. Inspite of conferring jurisdiction for trial of a particular offence by any particular court, as provided under Section 177, power is given to the Government under Section 185 Cr.P.C. to confer jurisdiction on, and give a direction to try that case in, a different sessions division than a court in the Sessions division within whose local jurisdiction the offence was committed and to which the case was committed having regard to the local jurisdiction. (Public Prosecutor v. D. Venkataranga Reddy107). Under Section 187 Cr.P.C if the Court which has jurisdiction has not taken cognizance of the matter, and the offence is brought to the notice of a Magistrate who is not competent to try it, the latter may send it to the Magistrate who is competent. Section 187 Cr.P.C. confers extended powers on Courts, and is meant to confer a larger jurisdiction on Magistrates to enquire into offences committed outside their local limits. The legislative intent, in conferring such jurisdiction, is to meet the technical plea raised by an accused suspected of having committed an offence outside the Magistrate's jurisdiction, in regard to which there is no judicial enquiry pending and the Magistrate considers it necessary to hold an inquiry with a view to send the accused to the proper Court for further enquiry or trial. It could not have been the intention of the Legislature that there should be two parallel Courts with different local jurisdictions holding enquiries into the same offence at the same time. Where a Court has taken cognizance of an offence under the ordinary rule and has, accordingly, issued a warrant of arrest directed to a Magistrate or a police-officer outside its jurisdiction, the powers of the Magistrate are limited to the execution of the warrant. All that the Magistrate is then concerned with is to ascertain whether the person arrested is the identical person named in the warrant. Only when no cognisance has been taken by the Court empowered to try an offender under the ordinary rule referred to, does the question of holding an inquiry under Section 187 Cr.P.C. arise. (In re Sagarmal Khermraj108).
83. The power given to the High Court under Section 407 Cr.P.C, to transfer cases from a criminal court subordinate to its authority to another such criminal court of equal or of superior jurisdiction, is inspite of the jurisdiction conferred on any court under Sections 177 to 185 (both inclusive). Section 407 enables the High Court to order that any offence be inquired into or tried by any court not qualified under Sections 177 to 185 (both inclusive) but in other respects competent to inquire into or try such offences. For any of the reasons mentioned in Section 407, the High Court has absolute power to transfer a case from one court to another competent to inquire into or try such a case, though the later court has no jurisdiction conferred on it under any of Sections 177 to 185. (D. Venkataranga Reddy107). The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. (S.N. Sharma11).
84. Even if it is presumed that power inheres in a police officer to transfer the complaint lodged with his police station to another, in cases where the offence committed is beyond the territorial limits of his police station, it is difficult to hold that he can transfer the complaint even in cases where both the Police Stations have territorial jurisdiction to investigate the said complaints or one of the complaint is, or both the complaints are, registered pursuant to their being referred for investigation by the Magistrate under Section 156(3) Cr.P.C.
XVI. IS THE POLICE OFFICER ENTITLED TO REFUSE TO REGISTER AN FIR ON A COMPLAINT HAVING BEEN REFERRED BY THE MAGISTRATE UNDER SECTION 156(3) CR.P.C.?
85. Sri N. Ramachandra Rao, Learned Senior Counsel, would submit that on receipt of a complaint from an aggrieved person the Magistrate, if he feels that a cognizable offence is made out, can forward the complaint to the local police within the jurisdiction limits of his Court; and, on its receipt, the police officer is bound to register the FIR u/s 154 Cr.P.C. Learned Government Pleader for Home would submit that the 9th respondent's complaint was registered on its being referred, under Section 156(3) Cr.P.C, by the IV Additional Chief Metropolitan Magistrate, Hyderabad; and the fifth respondent had no option but to register the complaint forwarded to him under Section 156(3) Cr.P.C. Sri S. Sriram, Learned Counsel, would submit that registration of an FIR by the police, on receipt of information, is not discretionary but is mandatory.
86. As noted hereinabove no police officer can, on his own and without an order of a Magistrate, investigate a cognizable case beyond the local area jurisdiction of a Court in whose limits the police station, to which he attached to, is located. Section 156(3) Cr.P.C, however, enables a Magistrate, empowered to take cognizance under Section 190 Cr.P.C, to direct investigation of a cognizable case. The power, to direct police authorities to investigate, is available to the Magistrate both under Section 156(3) CrPC and Section 202 CrPC. The only difference is the stage at which the said powers may be invoked. (Rameshbhai Pandurao Hedau v. State of Gujarat109; Rasiklal Dalpatram Thakkar105; Manharibhai Muljibhai Kakadia51). While the power under Section 156(3) Cr.P.C. is exercised before cognizance is taken i.e., at the pre- cognizance stage, Section 202 Cr.P.C. would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. Both these cases would fall in different classes. (Anju Chaudhary4; Dilawar Singh v. State of Delhi110; Rameshbhai Pandurao Hedau109; Suresh Chand Jain v. State of M.P.111; Dharmeshbhai Vasudevbhai v. State of Gujarat112; Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy113; Rameshbhai Pandurao Hedau109).
87. When the Magistrate has applied his mind only to order an investigation under Section 156(3) of the Code he is not said to have taken cognizance. It is an order in the nature of a pre-emptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 156(1) 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 169 or submission of a charge sheet under Section 173 Cr.P.C. (Anju Chaudhary4; Mona Pawar v. High Court of Allahabad114). While the investigation, contemplated in Chapter XII, can be commenced by the police even without the order of a Magistrate that does not mean that, when a Magistrate orders an investigation under Section 156(3), it would be a different kind of investigation. (Mohd.Yousuf v. Smt. Afaq Jahan115). Aninvestigation begun in furtherance of an order under Section 156(3) Cr.P.C. is not in any way different from the kind of investigation commenced in terms of Section 156(1). They both terminate with the filing of a report under Section 173 of the Code. (Anju Chaudhary4; Dilawar Singh110). In ordering an investigation under Section 156(3) Cr.P.C, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him, which includes a police report of such facts or information received from any person other than a police officer, under Section 190 of the Code. (Rameshbhai Pandurao Hedau109).
88. In order to proceed under Section 156(3) Cr.P.C, 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 to investigate. (Anju Chaudhary4; Srinivas Gundluri v. SEPCO Electric Power Construction Corporation116). It is then the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint, conduct investigation in accordance with Section 156 Cr.P.C. and, thereafter, take further steps contemplated in Chapter XII of the Code. (Suresh Chand Jain111 Anju Chaudhary4; and Dilawar Singh110). Sub-section (2) of Section 156 ensures that, once an investigation is commenced under sub- section (1), the same is not interrupted on the ground that the police officer was not empowered under the section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. (Raasiklal Dalpatram Thakkal105).
89. Where an investigation is undertaken on the directions of the Magistrate under Section 156(3) Cr.P.C. a police officer, empowered under sub-section (1) of Section 156, is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he is of the view that he lacks jurisdiction to investigate the matter. It is not within his jurisdiction to refrain from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond his territorial jurisdiction. The investigating agency is required to place the facts elicited during the investigation before the court in order to enable the court to come to a conclusion whether or not it has jurisdiction to entertain the complaint. Without conducting such an investigation, it would be improper on the part of a police officer to forward his report with the observation that, since the entire cause of action for the offence purportedly arises beyond the territorial jurisdiction of the Court, it should be transferred to another police station. Once the facts are received, it is for the Magistrate to decide his next course of action and decide whether or not he has jurisdiction to take cognizance of the complaint (Rasiklal Dalpatram Thakkar105).
90. Once a complaint is forwarded for investigation, by the Magistrate under Section 156(3) Cr.P.C, the police officer is obligated to receive the said complaint, register it as an FIR under Section 154 Cr.P.C. and cause an investigation thereinto. It is not open to him either to refuse to cause investigation or even to inform the Magistrate that it is appropriate that the investigation be caused by another Police Station. Section 201 Cr.P.C provides for a situation where a complaint is made to a Magistrate not competent to take cognizance of the offence and, thereunder, in case a complaint is made directly to him, for which he is not competent to take cognizance of the offence, the Magistrate can either direct the complainant to the proper Court or return the complaint for presentation to the proper Court. The Code does not empower a Magistrate, competent to take cognizance of and try the offence, either to return the complaint or to transfer it to another Magistrate who may also be competent to take cognizance of and try the offence. Where more Courts than one have territorial jurisdiction to take cognizance of and try the offence, the Code does not empower one Magistrate to transfer the complaint made before him to another Court, let alone transfer a complaint registered in one police station to another. Reading any such power as being available either to the Magistrate or to the Station House Officer, by necessary implication in any of the provisions of the Code, would amount to judicial legislation. What then is the remedy?
XVII. POWERS OF THE HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OR SECTION 482 CR.P.C.
91. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that it requires the exercise of the inherent and extraordinary powers of the High Court to quash the subsequent FIRs either under Section 482 Cr.P.C. or under Article 226 of the Constitution of India; the fact that such extraordinary powers are required to be exercised would also point to the fact that the scheme of Cr.P.C. does not permit more than one FIR; and these submissions are premised on the petitioner's submission that the speech at Nizamabad constitutes only one crime for the purpose of investigation.
92. It does appear that the only remedy available under the Code, where parallel investigations are being conducted consequent upon complaints being registered in two different police stations, is to invoke the jurisdiction of the High Court under Section 482 Cr.P.C. In addition, the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India would be available to have one of the complaints quashed or to have the complaint transferred from one Police Station to the other. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or the writ jurisdiction to intervene with the process of investigation and trial. (Pepsi Foods Ltd. v. Special Judicial Magistrate117; Pastor P. Raju18; S. Khushboo68). Ordinarily criminal proceedings, instituted against an accused, must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of court or otherwise to secure the ends of justice. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. (R.P. Kapur v. State of Punjab118; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque119). The words "Nothing in this Code" used in Section 482 Cr.P.C. is a non obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. (Manoj Sharma v. State120). In the exercise of its inherent power, the only requirement for the High Court is to see whether continuance of the proceeding would be a total abuse of the process of court. The Cr.P.C. contains a detailed procedure for investigation, charge and trial and, in the event it is desirous of putting a stop to the known procedure of law, the High Court must exercise circumspection, and great care and caution, to quash the complaint in the exercise of its inherent jurisdiction. (Trisuns Chemical Industry77; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.,121).
93. Ordinarily the power under Section 482 CrPC cannot be exercised to do something which is expressly barred under the Code (Simrikhia v. Dolley Mukherjee122, R.P. Kapur118; Sooraj Devi v. Pyare Lal123). However, in rare and exceptional cases, a departure can be made. (Manoj Sharma120). The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the court which has to exercise such jurisdiction in the facts of each case. (Manoj Sharma120). A case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way, or a final report under Section 173(2) has been forwarded to the Magistrate, would be a fit case for exercise of the power under Section 482 Cr.P.C or under Articles 226/227 of the Constitution. (Amitbhai Anil Chandra Shah25).
94. On its jurisdiction being invoked under Article 226 of the Constitution of India or under Section 482 Cr.P.C. which of the two complaints should this Court treat as the FIR and which of them as a statement under Section 162 Cr.P.C?
95. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, on a complaint being received regarding the commission of a cognizable offence, the officer in-charge of the police station should, before registering such a complaint, first enquire whether an F.I.R. has been registered in any other police station, in relation to the very same incident, even if it was given by a different complainant; and, only if it is not, should he then register the complaint and cause an investigation thereinto. Learned counsel would contend that, even in cases where a complaint is referred for investigation under Section 156(3) Cr.P.C., the police officer should inform the Magistrate that a similar complaint has been registered in another police station and request him to recall the earlier order passed under Section 156(3) Cr.P.C. While fairly stating that there is no such express provision in the Cr.P.C., Learned Counsel would submit that, since the legislature has failed to keep abreast with the times, this Court should iron out the creases in the Cr.P.C. and hold that such a power inheres in every officer in charge of a police station.
XVIII. JUDICIAL LEGISLATION IS IMPERMISSIBLE:
96. The Latin maxim, "Neque Lcgis Neque Senatus Sconsulta Ita. Sorivi Possunt Ut Omnis Casus Qui Quanto Que In Sedirinut Comprehendature Sed Saffic It Eaquae Plaerum Que Accibunt Contineri", means that neither the laws, nor Acts of Parliament, can be so written as to include all actual or possible cases, and it is sufficient if they provide for those things which strictly or ordinarily happen. (Morgan's Legal Maxims). The Court is often confronted with a situation which may not have been contemplated at the time of drafting the Statute. (Mahendra Kumar38). The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. (Rattan Chand Hira Chand v. Askar Nawaz Jung124). It is not within human powers to foresee the manifold sets of facts which may arise and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. It would save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. (Seaford Court Estates Ltd.102; Norman v. Norman125; Hansa Corpn.101). Courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will, and take the plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for courts to take into account the ostensible purpose and object, the real legislative intent and the purpose and spirit of the enactment so that no absurdity or practical inconvenience results. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislation inane. (Deepak Mahajan89).
97. Should this Court then read Sections 154 or any other provision of the Cr.P.C as, by necessary implication, to empower the police officer to refuse to record information, relating to a cognizable offence, on the ground that, in relation to the same incident, FIRs are registered in different police stations? It must not be forgotten that the judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'. Wide enough in all conscience is the field of discretion that remains. (Benjamin Cardozo's 'The Nature of the Judicial Process, Yale University Press (1921); and The Newabgani Sugar Mills Co. Ltd. v The Union of India126). A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided. (Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests127, Shyam Kishori Devi v. Patna Municipal Corpn128; A. R. Antulay v. Ramdas Sriniwas Nayak129; Dental Council of India v. Hari Prakash130, J. P. Bansal v. State of Rajasthan131 and State of Jharkhand v. Govind Singh132). Courts should not, ordinarily, add words to a statute or read words into it which are not there. (Delhi Financial Corpn v. Rajiv Anand133). There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. (State of Kerala v. Mathai Verghese134, Union of India v. Deoki Nandan Aggarwal135). A Judge is not entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. (Union of India v. Elphinstone Spinning and Weaving Co. Ltd136). The legislative casus omissus cannot be supplied by a judicial interpretative process.(Maruti Wire Industries Pvt. Ltd. v. S.T.O., I.S.T. Circle, Mattancherry137, Govind Singh132). Judges must exercise judicial restraint. In the name of judicial activism, judges cannot cross their limits and perform executive or legislative functions or take over functions which belong to another organ of the State. (Aravali Golf Club v. Chander Hass138; Indian Drugs & Pharmaceuticals Ltd. v. Workmen139 and S.C. Chandra v. State of Jharkhand140). Notwithstanding the sagacious counsel of Sri S. Niranjan Reddy that, under Section 154(1) Cr.P.C, the police officer has the inherent power to refuse to register a complaint even if he has territorial jurisdiction, on the ground that another complaint has been registered in respect of the very same incident in a different police station, this Court must resist the temptation of biting the "forbidden apple" of law making under the guise of interpreting them. While these and other aspects may necessitate immediate legislative intervention, it would be wholly inappropriate for this Court to don the robes of a Legislator and, under the cloak of statutory interpretation, undertake an exercise of legislation.
XIX. CAN FIRS BE TRANSFERRED FROM ONE POLICE STATION TO ANOTHER IN THE EXERCISE OF JURISDICTION UNDER SECTION 482 CR.P.C. OR ARTICLE 226 OF THE CONSTITUTION?
98. Would this Court be justified in expressing helplessness when its jurisdiction is invoked by a person complaining of violation of his fundamental rights and a case is made out of an imminent threat thereto? In what manner should this Court exercise its jurisdiction either under Section 482 Cr.P.C. or under Article 226 of the Constitution of India to provide relief and ensure protection against violation of the fundamental rights under Article 21 of the Constitution?
99. Exercise of jurisdiction by the High Court, either under Section 482 Cr.P.C. or Article 226 of the Constitution of India, to transfer complaints registered in one police station to another, presents several difficulties incapable of easy resolution. If more than one complaint, relating to the very same occurrence/incident, is registered in different police stations, which of the complaints should be treated as the FIR and which of them as a statement under Section 162 Cr.P.C? Should the date of registration of the complaint, by the police officer under Section 154 Cr.P.C, be taken as the yardstick or should it be the earliest of the dates on which the complaint is made, either to the police officer or to the Magistrate, which must be taken into consideration? Does Chapter XIII of the Code, which relates to jurisdiction of Courts, provide any guidance in this regard?
100. Section 186 Cr.P.C. is a remedial measure for a possible deadlock which may occur if two Courts either each refused to take action on the ground that the case should be tried by the other Court or both proceeded to try the same case. The doubt mentioned in Section 186 Cr.P.C. is not a doubt as to jurisdiction but to which of the Courts, having jurisdiction, should try the case under the circumstances. If a doubt arises as to the Court, by which such an offence should be tried, it must involve a doubt as to the suitability of one Court as compared with another from the point of view of "convenience and expediency". On such a doubt arising the High Court, exercising powers under Section 186 Cr.P.C, would have to decide with reference to the convenience of all concerned. (Charu Chandra Majumdar70). Section 186 (b) Cr. P.C. applies only when both the cases are common and they arise out of the same occurrence or the same transaction, and the parties are the same. (G. Sreeramulu v. V. Rangaswamy141). If Section 186 Cr.P.C, which has been provided to remove doubts from the point of view of 'convenience' and 'expediency', is to serve as a guide, whose convenience should this Court take into consideration? If it is the convenience of the investigating agency, would the place where the incident occurred (in the present case - Nizamabad) not be more convenient? If, on the other hand, it is the convenience of the accused which must form the basis, should this Court then treat the complaint registered with Osmania University Police Station as the FIR and direct transfer of the complaint registered at Nizamabad to Osmania University Police Station and be treated as a statement under Section 162 Cr.P.C.? These are all matters which the Cr.P.C. has neither specifically provided for nor does it provide any guidance for declaring principles of law capable of uniform application.
XX. TRANSFER OF CASES TO A SINGLE INVESTIGATION AGENCY
101. I find considerable force in the submission of Sri C. Subba Rao, Learned Counsel, that the freedom of the individual - accused must be balanced with the power of the State to respond thereto. In a constitutional democracy, wedded to and governed by the rule of law, responsibilities of the judiciary arouse great expectations. Judicial scrutiny is not a printed finality, but a dynamic process. Its application to the actualities of governance is not a mechanical exercise, but a high function of statecraft. (Maqbool Fida Husain v. Rajkumar Pandey142). A just balance, between the fundamental rights of the citizens under Article 21 of the Constitution and the expansive power of the police to investigate a cognizable offence, has to be struck by the Court. The sweeping power of investigation does not warrant subjecting a citizen each time to a fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs. It is beyond the purview of Sections 154 and 156 CrPC, nay a case of abuse of the statutory power of investigation in a given case. (Amitabhai Anil Chandra shah25). If the possibility, that all the acts and transactions may be so inter-connected that they would ultimately form one composite transaction, cannot be ruled out it would be imperative for the Court to direct complete and comprehensive investigation by a single investigating agency. (Samaj Parivartan Samudaya8).
102. What then is the course which this Court should adopt? Sri S. Sriram, Learned Counsel, would submit that the High Court, as the sentinel on the qui vive to protect human rights, can intervene and issue an appropriate mandamus, and transfer cases to a single investigating agency when investigation of a crime can result in the abuse of process or miscarriage of justice.
103. As the statutory provisions, under the Cr.P.C, are silent on these aspects recourse to executive instructions, if any, is not impermissible. Executive instruction can supplement a statute or cover areas to which the statute does not extend, but it cannot run contrary to the statutory provisions or whittle down their effect. The Government cannot amend or supersede statutory rules by administrative instructions. But, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. (Joint Action Committee of Air Line Pilots' Association of India (ALPAI) v. Director General of Civil Aviation143; State of M.P. v. G.S. Dall & Flour Mills144; Sant Ram Sharma v. State of Rajasthan145; State of Gujarat v. Akhilesh C. Bhargav146; K.H. Siraj v. High Court of Kerala147). Executive instructions can supplement and not supplant statutory provisions or rules. While a statutory provision or rule cannot be modified or amended by executive instructions, a valid provision or rule, having some lacuna or gap, can be supplemented by it. (Senior Supdt. of Post Offices v. Izhar Hussain148; St. Johns Teachers Training Institute v. Regional Director, NCTE149). If the statutory provisions or rules are silent on any particular point, the Government can fill up the gaps, supplement them and issue instructions not inconsistent with the statutory provisions and rules already framed. (Sant Ram Sharma145).
104. The Andhra Pradesh Police Manual notified in G.O.Ms. No.201 Home (Police.C) Department, dated 08.09.2001, while stipulating that the police officers should follow the provisions of the Cr.P.C and the Rules, prescribes detailed guidelines including, among others, the manner in which police officers should act in registering and investigating offences. This Manual is in the nature of executive instructions issued under Article 162 of the Constitution of India. Order 866-1, thereunder, relates to certain classes of crimes to be investigated by the CID (Crime Investigation Department). Clause (Y) thereof relates to cases of such a nature as, in the opinion of the DGP, the Additional DGP - CID or district authorities, call for investigation by an officer of the CID. Order 866-3 records that the Government of Andhra Pradesh had, vide G.O.Ms.No.438 dated 05.10.1988, declared the Office of the CID as one Police Station for the entire State of Andhra Pradesh under Section 2(s) Cr.P.C, and had directed that one of the Deputy Superintendents of Police (DSP) working in the said office be nominated for this purpose, by the Head of the said Office, to be the Station House Officer within the meaning of Section 2(s) Cr.P.C for the said Police Station.
105. In the absence of any statutory provision in the Cr.P.C. to the contrary, and as the CID is notified as one Police Station for the entire State of Andhra Pradesh, it would suffice if both the complaints relating to the petitioner's speech at Nizamabad on 08.12.2012, lodged in Nizamabad II Town and Osmania University Police Stations, are transferred to the CID P.S; either one of them is registered as an FIR under Section 154 Cr.P.C, and the other is treated as a statement under Section 162 Cr.P.C. Though it was a case where an FIR had already been lodged with the CBCID this Court, in Prabhakaran v. State of A.P.150 observed:-
"................. After arguing for some time, learned counsel for the petitioner has submitted that the action of the respondent-police in booking successive First Information Reports in various police stations for the very same set of facts is wholly illegal, that once a crime is registered basing on a complaint and investigation is commenced, all the subsequent complaints with regard to the same set of facts be treated as statements under Section 162 Cr.P.C. even though they are registered as crimes as per the decision of the Apex Court, that the police officer concerned has already transferred one of the cases to C.B.C.I.D. for investigation, and that it is reported that the aggrieved parties were directed to lodge complaints before the C.B.C.I.D. Considering the submission of the learned Counsel and in the facts and circumstances of the cases, the office concerned, before whom one of the cases is transferred, is hereby directed to treat the other cases registered in various police stations as also the fresh complaints in connection with the same transaction as statements of other aggrieved persons and investigate the matter as one case and file a final report either way before the Court concerned.................."
XX1. CONCLUSION:
106. As this Court would have to examine whether the FIRs registered against the petitioner satisfy the test of "sameness" and only then exercise its powers, either under Article 226 of the Constitution or under Section 482 Cr.P.C, to grant relief, it would be wholly inappropriate for this Court to give a blanket order to respondents 1 and 2 not to register further complaints against the petitioner. As Order 866-I(Y) of the A.P. Police Manual empowers the 2nd respondent to transfer cases to the CID, a mandamus shall issue to him to transfer both FIR No.1 of 2013 at Nizamabad II Town P.S. and FIR No.5 of 2013 at Osmania University P.S. to the CID P.S. forthwith. On receipt thereof the DSP, designated as the CID PS Station House Officer, shall register one them as an FIR and treat the other as a statement under Section 162 Cr.P.C; cause an investigation with utmost expedition; and forward his report to the competent Magistrate/Court at the earliest.
XXII. A BRIEF FOOT NOTE:
107. There is an urgent need for adequate provisions being made in the Cr.P.C, prescribing the procedure in cases where multiple complaints are registered in different police stations for the same occurrence/incident/event/crime, all of them having territorial jurisdiction to investigate the complaints. In Maqbool Fida Hussain142 the question which the Delhi High Court was confronted with was as to which court would be considered as the competent court having jurisdiction to try the matter when a painting, uploaded on a website and accessible to people across the globe, was being viewed by different people/complainants across the country who, in turn, were offended with such a painting and had filed their complaints at various places in India. It is in this context that the learned Judge opined:-
"......In my considered view, this particular aspect of jurisdiction fettered within the parameters of scrutiny of Section 202 of the said Code as discussed above derives its importance especially with the advent of the technological explosion where a person sitting anywhere across the globe can get access to what ever information he has been looking for just with a click of a mouse. Therefore, it has become imperative that in this information age, jurisdiction be more circumscribed so that an artist like in the present case is not made to run from pillar to post facing proceedings. It was found necessary to at least examine this aspect in view of the large number of incidents of such complaints which had been brought to light by press resulting in artists and other creative persons being made to run across the length and breath of the country to defend themselves against criminal proceedings initiated by oversensitive or motivated persons including for publicity. This however is not an aspect where a direction can be issued since it is within the domain of appropriate legislation. The learned ASG while assisting this Court fairly stated that he would advice the Government to take steps by way of appropriate legislative amendments as may be proper keeping in mind the balancing of interest between the person aggrieved and the accused so as to prevent harassment of artists, sculptors, authors, filmmakers etc. in different creative fields. I say nothing more but hope that this aspect would get the attention it deserves and the legislature in its wisdom would examine the feasibility of possible changes in law. ...."(emphasis supplied)
108. Soon thereafter, in "S. Khushboo68", certain remarks made by an actress, in an interview to a leading English Magazine, (considered by many to be innocuous), resulted in as many as 23 criminal complaints being filed against her mostly in the State of Tamil Nadu.
109. It is not difficult to foresee instances, in the not too distant future, of multiple complaints being lodged in different police stations by different complainants for the same incident. A "movie", screened in different theatres across the country, could be considered offensive by some viewers. A tweet on 'twitter' or a posting on 'face-book' may result in some of those, who view it, feeling outraged thereby. All these could result in multiple complaints being filed by different complainants in different police stations spread all over the country. The plight of an M.F. Hussain142 or a S. Khushboo68 may well be the plight of several others who, in the absence of adequate provisions and a specific remedy under the Code, can only invoke the jurisdiction of the High Court under Article 226 of the Constitution or under Section 482 Cr.P.C.
110. This Court may not be understood to have observed that the cognizable offences, which an accused is alleged to have committed, should not be investigated into. This Court is merely of the view that it would suffice if one complaint is lodged, a provision is made by the legislature to empower either the Magistrate or the officer in-charge of the police station to transfer complaints registered, or sought to be registered, in one police station to another where an F.I.R. has already been registered in respect of the same offence/incident and ensure that a thorough investigation is caused there into, with utmost expedition, by a single investigation agency.
111. Despite the assurance given by the learned Additional Solicitor General before the Delhi High Court in M.F. Hussain142, more than five years ago, no action has, as yet, been taken on the legislative front. As a writ of mandamus cannot be issued to the legislature to enact a particular legislation, (State of Jammu & Kashmir v. A.R. Zakki151; State of Andhra Pradesh v. T. Gopalakrishna Murthi152) and Supreme Court Employees Welfare Association v. Union of India153), one can only hope that necessary legislation is made in this regard at the earliest to protect the fundamental rights of a citizen, under Article 21 of the Constitution of India, against the consequences of multiple complaints being registered against him, for the same incident/offence, in different police stations and, at the same time, ensure that the offences, in the FIR registered against the accused, are investigated by a single investigating agency with utmost promptitude and expedition.
112. The Writ Petition is disposed of accordingly. The Miscellaneous petitions pending, if any, shall also stand disposed of. No costs. __________________________
RAMESH RANGANATHAN, J
Date:19-07-2013.
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