TaxTMI 
TaxTMI 
2012 (12) TMI 1129
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....t of the Chief Judicial Magistrate, Gorakhpur. According to this complaint, one Mahant Aditya Nath Yogi, Member of Parliament and leader of an unregistered organization called the Hindu Yuva Vahini had been spreading hatred amongst Hindus and Muslims for a number of years and has also been causing fear amongst the Muslim community and harming them, demolishing the properties of Muslims and carrying out other acts of harassment. On 27th January, 2007 when the complainant, Respondent No.2 herein, was returning home from the Railway Station, Gorakhpur at about 8.00 p.m., Yogi Aditya Nath, Member of Parliament, Dr. Radha Mohan Dass Aggarwal, Member of the Legislative Assembly, Dr. Y. D. Singh, Member of the Legislative Council and Anju Chowdhary, Mayor of Gorakhpur, the Minister of State and BJP Leader Shiv Pratap Shukla, other office bearers and thousands of activists of Hindu Yuva Vahini, BJP and Vyapar Mandal, Gorakhpur, as well as various other persons whom the petitioner does not know by name but can recognise, were holding a meeting as "Warning Meeting". The meeting which was addressed by Yogi Aditya Nath who was saying that if blood of one Hindu be shed then they will not regist....
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....ents including the public meeting and torch procession was witnessed by a number of people apart from me, who I know by name and address, but I do not deem it proper to reveal their names in the present situation due to reason of insecurity. 5. That after the night of 26th January, 2007, due to highly sensitive condition prevailing in the town Gorakhpur, curfew was imposed on three Police Station areas of the Gorakhpur town and Section 144 was in force in entire Gorakhpur city area including the places of public meeting and the torch procession. Despite this, the aforesaid unconstitutional meeting and torch procession was organized and conducted openly violating the Section 144 in presence Police Officers and the public was provoked and directed to perform criminal acts by the activists present there and the activists of other places were provoked through them. Aditya Nath Yogi provoked Hindus to kill Muslims and rob and set afire their houses and shops and to destruct their religious places and Tazias for the reason of the murder of Raj Kumar Agrahari (incident of 26/27th January, 2007 Gorakhpur Town) and the alleged incidents happending since 24th January, 2007 and also ....
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....situated in village Dumri (Niwas) P.S. Sahajanawan, and Eidgaah situated in village Mustafabad @ Mallaur P.S. Sahjanawan and the Mosque situated in village Bhhopgarh P.S. Gola District Gorakhpur. Tazias were not allowed to be lifted at many places in Gorakhpur district and at many places where the Tazia procession were carried out, they were destructed and set afire there by doing miscreant acts there. The shops of Salim S/O Shaukat in village Jaddupatti, Ashiq Band, Anwar barber, Hafizullah and Jabbar in village Menhdeva under Police Station Sikrigunj were also set afire under the same conspiracy. These miscreants also robbed and set afire the shop of Tajammul Hussain in village Dhabra of Police Station Sikrigunj. In the same way, the shops of Nadir, Ashiq Mukhtar were robbed and set afire in Belghat and such miscreants also attacked the mosque situated in village Bhainsa P.S. Bansgaon and destroyed it's gate and also destructed shops of two Muslims in the market. 7. That the followers of Aditya Nath Yogi and activists - miscreants of the abovenamed organization robbed and set afire the buses of the roadways by blocking the roads and the government and private other vehic....
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....uary, 2007 to 15th February, 2007. All these criminal acts were done by the follower activists of Yogi Aditya Nath connected to Hindu Yuva Vahini, BJP and Vyapar Mandal on instigation by aforesaid enraging speech by Yogi Aditya Nath and under the conspiracy hatched by Yogi Aditya Nath and other abovenamed persons. 9. That Yogi Aditya Nath delivered a enraging speech addressing "Hindu Chetna Rally" in Kasba Kasaya District Padrauna on 28th January, 2007 and asked the Hindus that they shed fear of death from their hearts. It is necessary to mention here that in Purvanchal, Hindu Yuva Vahini under the leadership of Yogi Aditya Nath was hatching a conspiracy to disrupt communal harmony, to annoy Muslims and to harm them since earlier times and was looking for an appropriate situation for the same and it's activists were active for the same. This appropriate situation met them in the background of murder of Rajkumar Agrahari in Gorakhpur town in the night of 26/27th January, 2007. The activists of Hindu Yuva Vahini and BJP were jointly holding public meetings at the different places since first week of January 2007 itself in Kotwali Padrauna area of Kushinagar district and were....
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.... including Anju Chaudhary, the Mayor of Gorakhpur and Yogi Aditya Nath, Member of Parliament from that constituency. It appears from the record that the High Court had also passed some orders in regard to the investigation of the case and finally the police had registered a case under Section 302 of the Indian Penal Code, 1860 (for short 'IPC'), and had even filed a charge sheet under Section 173 of the Code before the Court of competent jurisdiction against six unknown accused persons. 6. Apart from this incident and before the public meeting attended by above-stated Anju Chaudhary, another incident took place at the shop of one Hazrat S/o Bismilla under Police Station Cantt. In this incident, the shop of Hazarat was set on fire at about 6 p.m. on 27th January, 2007 causing heavy damage to the same. In fact, as per the report lodged by him, he was working in that shop and owner of the shop was one Md. Isa Ansari. According to him, some unknown persons, claiming to be from Hindu Yuva Vahini, had set the shop on fire. He neither knew their names nor their addresses. This report was sent by post and was, thus, received by the Police Station and registered as FIR No.145 of 2007 on ....
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....07 at P.S. Cantt Gorakhpur on the basis of the application of Hazarat S/o Vismilla. On perusal of this FIR, it is revealed that the said FIR relates to the incident, which had occurred on 27.01.2007 at about 6.00 p.m., in which damage was caused to the shop of the complainant Hazarat by some named persons of Hindu Yuwa Wahini. That FIR was lodged regarding one incident only, whereas in the application under Section 156(3) Cr.P.C. a number of incidents have been mentioned, which occurred on different places affecting different persons. Therefore, it cannot be said that the FIR registered at Case Crime No.145 of 2007 covers all the incidents mentioned in the application under Section 156(3) Cr.P.C. As such, there was no legal bar in this case to get the First Information Report registered on the basis of the application moved by the applicant revisionist under Section 156(3) Cr.P.C. and its investigation by the police, because all the allegations made in the said application and in the FIR registered at Case Crime No.145 of 2007 are not the same. 12. Although, in view of law laid down by a Division Bench of this Court in the case of Sukhwasi Vs. State of U.P. 2007 (59) ACC 739 in ....
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...., under Section 156(3) Cr.P.C. and it must be ensured that after registration of the FIR on the basis of that application, proper investigation is carried out." 9. In the present appeal by way of special leave, the appellant Smt. Anju Chaudhary challenges the legality and correctness of the order of the High Court primarily on the following grounds : (a) The order passed by learned CJM dated 29th July, 2008 did not suffer from any error of jurisdiction and, thus, the High Court could not have upset the said order in exercise of its revisional jurisdiction. (b) While making certain observations, the High Court, in the impugned order held that prima facie cognizable offences were made out and while virtually directing the learned Magistrate to get an FIR registered, has foreclosed the exercise of judicial discretion by the learned Magistrate. As such, the order of the High Court is not sustainable. (c) In law, there cannot be two FIRs registered in relation to the same occurrence or different events or incidents two or more but forming part of the same transaction. The direction to register a second FIR, therefore, is contrary to law and the very s....
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....tion so recorded under Section 154(1) has to be given to the informant free of cost. In the event of refusal to record such information, the complainant can take recourse to the remedy available to him under Section 154(3). Thus, there is an obligation on the part of a police officer to register the information received by him of commission of a cognizable offence. The two-fold obligation upon such officer is that (a) he should receive such information and (b) record the same as prescribed. The language of the section imposes such imperative obligation upon the officer. An investigating officer, an officer-in-charge of a police station can be directed to conduct an investigation in the area under his jurisdiction by the order of a Magistrate under Section 156(3) of the Code who is competent to take cognizance under Section 190. Upon such order, the investigating officer shall conduct investigation in accordance with the provisions of Section 156 of the Code. The specified Magistrate, in terms of Section 190 of the Code, is entitled to take cognizance upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from....
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....ating powers by the Police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code, as it would not only further the object of law but even that of just and fair investigation. More so, in the backdrop of the settled canons of criminal jurisprudence, re-investigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. [Ref. Rita Nag v. State of West Bengal [(2009) 9 SCC 129] and Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP (Crl) No.9185-9186 of 2009 of the same date). 16. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straightjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts d....
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....f the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all, the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved acc....
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....rise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a charge-sheet to the Delhi court and the withdrawal of the case in the Ambala court amounted to an abuse of the process of the court. We do not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 CrPC, it was expressly mentioned that a case had been filed in the D....
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....ships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court." 24. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. One of them, is pointed out by the Privy Council, thus: "[I]f no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation...." 25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice. XXX XXX XXX 35. For the aforementioned reasons, the registration of the second FIR under Section 154 CrPC on the basis of the letter of the Director General of Police as Crime No. 268 of 1997 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no....
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....n under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it." (emphasis supplied) XXX XXX XXX 23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter- complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieve....
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....f Punjab [(1970) 2 SCC 113] also, this Court examined the question as to whether cryptic, anonymous and oral messages, which do not clearly specify the cognizable offence, can be treated as FIR, and answered the question in the negative. 22. In matters of complaints, the Court in the case of Shiv Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed the view that the law does not prohibit filing or entertaining of a second complaint even on the same facts, provided that the earlier complaint has been decided on the basis of insufficient material or has been passed without understanding the nature of the complaint or where the complete facts could not be placed before the court and the applicant came to know of certain facts after the disposal of the first complaint. The Court applied the test of full consideration of the complaints on merits. In paragraph 18, the Court held as under: - "18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the com....
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....ld be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, riots may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Court took the view that there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report. 25. Now, we should examine the facts of the present case in light of the principles stated supra. The complaint/application under Section 156(3) filed by respondent No. 2 was founded on the condolence meeting which was attended by a large number of persons including the persons named in the complaint. According to respondent No. 2, ....
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....r and they are neither inter-linked nor inter- dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case. Thus, we have no hesitation in coming to the conclusion that lodging of the subsequent FIR was not a second FIR for the same occurrence as stated in FIR 145/2007, and thus, could be treated as a First Information Report for all purposes including investigation in terms of the provisions of the Code. It was not in the form of a statement under Section 162 of the Code. Is an accused entitled to hearing pre-registration of an FIR? 29. Section 154 of the Code places an unequivocal duty upon the police officer in charge of a police station to register FIR upon receipt of the information that a cognizable offence has been committed. It hardly gives any discretion to the said police officer. The genesis of this provision in our country in this regard is that he must register t....
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....and is not subjected to custody in accordance with law. There would be the pre- dominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons. Firstly, the Code does not provide for any such right at that stage. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in the case of Union of India v. W.N. Chadha (1993) Suppl. (4) SCC 260 clearly spelled out this principle in paragraph 98 of the judgment that reads as under: "98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat ....
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....t any right of any suspect at that stage. 33. Even in the cases where report under Section 173(2) of the Code is filed in the Court and investigation records the name of a person in column (2), or even does not name the person as an accused at all, the Court in exercise of its powers vested under Section 319 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. 34. Of course, situation will be different where the complaint or an application is directed against a particular person for specific offence and the Court under Section 156 dismisses such an application. In that case, the higher court may have to grant hearing to the suspect before it directs registration of a case against the suspect for a specific offence. We must hasten to clarify that there is no absolute indefeasible right vested in a suspect and this would have to be examined in the facts and circumstances of a given case. But one aspect is clear that at the stage of registration of a FIR or passing a direction under Section 156(3), the law does not contemplate grant of any hearing to a suspect. Coming to the facts of the present case, the complaint un....
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.... commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code. Such an investigation embraces the continuity of the process which begins with collection of evidence under Section 156 and ends with the final report either under Section 159 or submission of chargesheet under Section 173 of the Code. Refer Mona Pawar v. High Court of Allahabad [2011) 3 SCC 496]. In the case of Dilawar Singh v. State of Delhi [2007) 9 SCR 695],....
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....estigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different class. This view was also taken by a Bench of this Court in the case of Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185]. The distinction between these two powers had also been finally stated in the judgment of this Court in the case of Srinivas Gundluri & Ors. v. SEPCO Electric Power Construction Co....