TMI Blog2012 (12) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction. Such things 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. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences “committed in the course of the same transaction”. - Criminal Appeal No. 2039 OF 2012, (Arising out of SLP (Crl) No.9475 of 2008) - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a fight. Amongst others, it was also stated in the complaint as under: He stated that we will not allow lifting of Tazia anywhere in the Gorakhpur City and the Gorakhpur District and we will also celebrate our Holi with these Tazias. He stated that we will have to take harsh steps for the welfare of Hindus and we do not want that the generations to come remember us with bad names. He stated that I do not understand that we will be ready to take up those names, therefore, be ready to fight your final battle. Member of Parliament Yogi Aditya Nath stated that once you stand up then you see that Gorakhpur will remain peaceful for many years. If the administration does not take revenge of the murder of the Trader s son, then we will take ourselves, we will ourselves take revenge of that murder. Member of Parliament Yogi Aditya Nath, in his speech, termed the administration as worthless and eunuch and the incidents as Government sponsored terrorism and challenging the democratic Government he stated that they will destroy the law and order and will take law in their own hands. He also called for bandh of Gorakhpur and Basti Divisions and directed the activists to inform about this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of the speech given by Yogi Aditya Nath in the public meeting on 27th January, 2007, torch procession and conspiracy hatched by abovenamed persons present with him, the shops, houses, godowns and vehicles of Muslims were robbed and set afire in Gorakhpur Police Station Areas in Gorakhpur Town by the Yogi supported Hindu Yuva Vahini, activists of BJP, Vyapar Mandal, which created an atmosphere of fear and terror. Gorakhnath temple became main centre of communal miscreant activities of the followers of this Yogi Aditya Nath and their refuge and these miscreants attacked the houses of Muslims residing in the area adjoining the temple premises, their shops and godowns and the vehicles of Muslims standing there (Trucks, Rickshaw, Scooters, Cars, etc.) and set them afire which caused which loss. Under the criminal conspiracy and instigation of Member of Parliament Yogi and the abovenamed persons, the followers of Yogi Aditya Nath killed Rashid R/O Sahabgunj S/O Rasheed R/O Rahmat Nagar, P.S. Rajghat in the Rajghat Police Station area and such followers also tried to kill by setting afire by pouring petrol on Peshimam Tufail Ahmad S/O Munnavar Hussain R/O Singharia in Cantt. Police S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the roadways on different places under this conspiracy and also caused loss by setting them afire, in which 14 roadways buses belonged to Gorakhpur areas and 8 buses belonged to outer areas. On date 31st January, 2007 road buses in the Nichnaul depot in Maharajgunj district were also destructed and set afire by the followers of Yogi Aditya Nath. 8. That Railways was disrupted by the followers of Yogi Aditya Nath Hindu Yuva Vahini, BJP and Vyapar Mandal and about more than 14 trains were set afire causing loss and the Yogi supported miscreants of these organizations pelted stones and destructed the office of the SDM situated in Bansgaon and office of the DM at Gorakhpur under the criminal conspiracy and flamboyant speech against the government and instigation for criminal acts by the persons abovenamed and in the same way the miscreants of these organizations robbed and set afire the shops of Muslims in other Kasbas Khajani, Kauriram, Bansgaon, etc. of the Gorakhpur district. In Kasba Khajani, these miscreants entered the mosque and and Madarsa Arabia Ahal-e-Sunnat and robbed and destroyed the same and also robbed and set afire the shops of 15 Muslims, whose details have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot dare raise their heads and any of their religious ceremony has not to be allowed to be completed. In this respect, all such information are recorded in the G.D. of Kotwali Padrauna town on different dates in the month of January, 2007. 10. That all the preparations to carry out such wrongful acts and spread the same in Gorakhpur Division and Basti Division had been completed by Hindu Yuva Vahini, BJP and Vyapar Mandal under the leadership of Yogi Aditya Nath and the speech delivered by Yogi Aditya Nath in the aforesaid Warning meeting and the torch procession conducted on Gorakhpur Railway Station in the night of dated 27th January, Gorakhpur Railway Station in the night of date 27th January, 2007 and the Hindu Chetna Rally conducted in Kasaya of district Kushinagar on 28th January, 2007 further provoked and directed their activists and thereafter Yogi Aditya Nath got himself arrested at the border of Gorakhpur district on 28th January, 2007 while returning from Kasaya under conspiracy and it was canvassed by the activists of Hindu Yuva Vahini, BJP and Vyapar Mandal under conspiracy only that the administration has arrested the prophet of Hindu Welfare, hence got the braw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. This application, which was heard by the learned Chief Judicial Magistrate, was rejected vide order dated 29th July, 2008. The learned Magistrate expressed the opinion that since Crime Case No.145 of 2007 had already been registered, as noticed above, there was no propriety to register an FIR again. The intention of the legislature was to provide speedy criminal law and justice to all. Thus, there was no need to conduct fresh investigation by another person merely by lodging a fresh FIR. The Court held that to pass such an order was not justifiable and rejected the application. The thrust of the order of the learned Magistrate was primarily on this aspect of the case. 8. Aggrieved from the order dated 29th July, 2008, Parvaz filed a revision petition before the High Court. The High Court vide its judgment dated 26th September, 2008 set aside the order of the learned Magistrate under revision and directed the Magistrate to pass a fresh order on the application of respondent No.2. While passing this order, the Court held as under : 11. In addition to the aforesaid averments, various other allegations have also been made in the application under Section 156(3) Cr.P.C. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re disclosed. Hence, treating the application under Section 156(3) Cr.P.C. as complaint in present case would not be legal and justified. While passing order for treating the application under Section 156(3) Cr.P.C. as complaint, the following observations made by the Full Bench of this Court in the case of Ram Babu Gupta (supra) must be kept in mind by the Magistrate/Judges:- However, it is always to be kept in mind that it is the primary duty of the police to investigate in case involving cognizable offences and aggrieved person cannot be forced to proceed in the manner provided by Chapter XV and to produce his witnesses at his cost of bring home the charge to the accused. It is the duty of the state to provide safeguards to the life and property of a citizen. If any intrusion is made by an offender, it is for the State to set the law into motion and come to the aid of the person aggrieved. 13. Therefore,, having regard to the afore cited observations made by the Full Bench, the Magistrates/Judges should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under Section 156(3) Cr.P.C. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in law as well as with reference to the facts of the case in hand. It is contended on their behalf that there were no two separate FIRs in relation to the same offence or occurrence, but these FIRS related to two different incidents which is permissible in law. The appellant was not entitled to any hearing in law at the stage of filing the FIR, and in any case no direction has been made to register a case particularly against the appellant for any given offence. Thus, the order of the High Court does not call for any interference. 11. Having noticed the contentions of the parties and in order to complete the factual matrix of the case, we may also notice at this stage that in furtherance to the order of the High Court dated 26th September, 2008, the learned CJM, vide order dated 17th October, 2008 accepted the application of respondent No.2 and directed the Police Station Cantt., Gorakhpur to register the case under appropriate sections and to ensure the investigation in terms of the order passed by the High Court. A copy of the order was placed before this Court during the course of hearing. 12. Since all these contentions are inter-related and inter-dependant, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reduced to writing by the officer in-charge of a Police Station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion, which culminates with filing of the police report in terms of Section 173(2) of the Code. It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy, rule of fair investigation and further to prevent abuse of power by the investigating authority of the police. Therefore, second FIR for the same incident cannot be registered. Of course, the Investigating Agency has no determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of conspiracy to cheat and misappropriation by the two accused. At that stage, the investigating agency was not aware of any conspiracy to send the pillars (case property) out of the country. It was also not known that some other accused persons were parties to the conspiracy to obtain possession of the pillars from the court, which subsequently surfaced in London. Earlier, it was only known to the Police that the pillars were stolen as the property within the meaning of Section 410 IPC and were in possession of the accused person (Narang brothers) in London. The Court declined to grant relief of discharge to the petitioner in that case where the contention raised was that entire investigation in the FIR subsequently instituted was illegal as the case on same facts was already pending before the courts at Ambala and courts in Delhi were acting without jurisdiction. The fresh facts came to light and the scope of investigation broadened by the facts which came to be disclosed subsequently during the investigation of the first FIR. The comparison of the two FIRs has shown that the conspiracies were different. They were not identical and the subject matter was different. The Court obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. 21. As observed by us earlier, there was no provision in the CrPC, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been no illegality. Both the appeals are, therefore, dismissed. 17. In the case of M. Krishna v. State of Karnataka [(1999) 3 SCC 247], this Court took the view that even where the article of charge was similar but for a different period, there was nothing in the Code to debar registration of the second FIR. The Court opined that the FIR was registered for an offence under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act related to the period 1.8.1978 to 1.4.1989 and the investigation culminated into filing of a report which was accepted by the Court. The second FIR and subsequent proceedings related to a later period which was 1st August, 1978 to 25th July, 1978 under similar charges. It was held that there was no provision which debar the filing of a subsequent FIR. 18. In the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181], the Court explained that an information given under sub-Section (1) of Section 154 of the Code is commonly known as the First Information Report (FIR). Though this term is not used in the Code, it is a very important document. The Court concluded that second FIR for the same offence or occurrence giving rise to one or mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime No. 268 of 1997 of Kuthuparamba Police Station against the ASP (R.A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside. 19. The judgment of this Court in T.T. Antony (supra) came to be further explained and clarified by a three Judge Bench of this Court in the case of Upkar Singh v. Ved Prakash [(2004) 13 SCC 292], wherein the Court stated as under : 17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible. 25. In the instant case, it is seen in regard to the incident which took place on 20-5-1995, the appellant and the first respondent herein have lodged separate complaints giving different versions but while the complaint of the respondent was registered by the police concerned, the complaint of the appellant was not so registered, hence on his prayer the learned Magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the High Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value. 20. Somewhat similar view was taken by a Bench of this Court in the case of Rameshchandra Nandlal Parikh v. State of Gujarat [(2006) 1 SCC 732], wherein the Court held that the subsequent FIRs cannot be prohibited on the ground that some other FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of sameness to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ievance and alleged commission of offences at the time and subsequent to the holding of the meeting. 26. The First Information Report 145/2007 lodged by Hazrat son of Bismillah related to burning of a shop prior to holding of a meeting. He categorically stated that he did not know the persons or names of the perpetrators who attacked the shop where he was working. This incident occurred at 6 p.m. as per the records while the meeting itself, as per respondent No. 2 was held after 8 p.m., though on the same date. His report clearly states that when he was going back to his house at about 8.30 p.m., he stopped at the place where the meeting was being held. The FIR registered by Hazrat was against unknown persons and related to a particular event and commission of a particular crime. There was no question of any provocation, conspiracy or attempt by the persons premeditatedly committing the offences which they committed. 27. As per the FIR, it was an offence committed at random by some unknown persons. The registration of such FIR was neither intended to be nor was it in fact in relation to a matter of larger investigation, or commission of offences, as alleged by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists. In fact the view taken is that he is duty bound to register an FIR. Then the question that arises is whether a suspect is entitled to any pre-registration hearing or any such right is vested in the suspect. 30. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Indian Penal Code is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose; firstly to adequately punish the offender in accordance with law and secondly to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under : 50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners. 32. While examining the above-stated principles in conjunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to who besides the named persons gave speeches, incited the public at large, what its impact was on the violence as alleged and who were the persons who had participated in the alleged communal violence. Thus, it was not a case where one or more persons committed the murder of someone and clearly fell under Section 302 IPC. The merit of the case was not disclosed by the learned Magistrate while passing the order dated 29th July, 2008 under Section 156(3) of the Code. The Court did not analyze at all the ingredients of an offence, participation of persons and their other effects. The court primarily proceeded on a legal issue without reference to the facts of the case stating that since one FIR had been recorded i.e. FIR No. 145/2007, it was not permissible to register second FIR and direct investigation thereof. This view, as already discussed above was, in fact and in law, not sustainable. The Court had not recorded any finding in favour of the appellant to the effect that she was not present, she had not participated or that she was in no way connected with communal violence. We must not be understood to state that the appellant was involved in any manner in the commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 36. Caution in this process had been introduced by this Court vide its judgment in the case of Tula Ram Ors. v. Kishore Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter XV of the Code. 38. Thus, the Magistrate exercises a very limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further. This distinction has to be kept in mind by the court in different kinds of cases. In the present case, the learned Magistrate while passing the order dated 29th July, 2008, had not dealt with the case on merits, but on a legal assumption that it was not a case to direct investigation because investigation was already going on under FIR No. 45/2007. Once it is held as done by us above, there were two different and distinct offences committed by different persons and there was no commonality of transaction between the two. We do not find any error of jurisdiction in the order of the High Court requiring the learned Magistrate to deal with the cases afresh and pass an order under Section 156(3) of the Code. Once, that view is taken, the direction passed by the learned Magistrate directing further investigation under Section 156(3) can also not be complied with though there is no specific challenge to that order before us. 39. Thus, we are called upon to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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