Introduction
First Information Report (FIR) is a written document prepared by the police on receiving information about the commission of a cognizable offence, offences for which the police may arrest a person without warrant. It sets the criminal justice in motion, based on which investigation is carried on. Section 154 of the Code of Criminal Procedure, 1973 (the Code) does not qualify “information” as the police have no discretion to conduct a preliminary inquiry or have to be satisfied with the credibility and reasonableness as noted in the case of Lalita Kumari v. Government of U.P and Others.
Second FIR is, as the name suggests, an FIR filed after the police have registered an initial FIR for the offence committed. It is filed on the same offence by a different complainant, may have different details and aspects of the case. Before understanding and answering the permissibility of filing of a second FIR on the same offence, it is crucial to appreciate the meaning of “same offence” and of the “sameness principle”.
Sameness principle
The concept of sameness is to be construed in a restricted manner. As per Surender Kaushik and Others v State of Uttar Pradesh and others, it does not allow registration of complaint that would amount to improvement of facts in the FIR that is filed at the first instance. It further prohibits complaint against the same accused. The subject matter of complaints is tested through de facto assessment of ‘test of sameness’. If the complaints are related to same incident in same occurrence or is part of the same transaction, the subject matter of both the complaints are same. Events are part of the same transaction if they are related to same incident at the given place in close proximity of time. In cases where allegations in the FIR are different and separate having different spectrum then it will be regarded as counter-complaint and not as efforts to improve allegations made in the first instance.
Same offence
Same offence is one arising out of same occurrence, transaction and incident implicating the same accused even if instituted in different courts. Where the accused and allegations are same, but the nature, mode and manner of the offence and commission of it is distinct, subsequent FIR is considered as not registered on the same offence. For evaluation of this, mentioning of same or different sections is not an indicator but rather the mode and modalities of commission of the offence and its nature is as per Nirmal Singh Kahlon v State of Punjab.
Maintainability of Second FIR for Same Offence
From the provisions of the Code and a plethora of cases of the Apex Court, it is clear that in cases where the complaints are related to same offence with the same subject matter, subsequent complaints are liable to be quashed. Whereas, if they offer rival contentions and do not improve information obtained earlier, they will be characterized as counter-complaint and will not be prohibited. Three judge bench in Upkar Singh v Ved Prakash and others clarified that subsequent FIRs on same incident is not permitted but this prohibition does not extend to registering counter-complaints as such prohibition may be counter-intuitive to the Code by depriving the legitimate right to book the real accused.
Registering multiple FIRs is contrary to the spirit of Section 154 of the Code. Both Section 156, that grants police and Magistrate the power to investigate and order such investigation, and Section 190 that provides for the Magistrate to take cognizance of offences, cannot be construed to give effect to more than one FIR for an occurrence. Police investigation has to lead to filing of report to the Magistrate in terms of Section 173(2) and is appropriate to adhere to the settled principles of law. Section 154 contains inbuilt safeguards against abuse of power by police, double jeopardy and for fair investigation. In Anju Chaudhary v. State of U.P., multiple FIRs were observed to allow re-investigation by same agency negating the rights given to the suspect and is also beyond the competence of Police.
As per Sections 154 to 157, 162, 169, 170 and 173 only the earliest information as per Section 154 is relevant, there can be no second FIR, nor can there be a fresh investigation on receiving new information on the same transaction. In Amitbhai Anilchandra Shah v CBI and another, a second FIR on same occurrence is held to be violative of Article 21 of the constitution and upheld the “consequence test” to determine if offences are to be treated as part of same offence- if allegation that is a part of the second FIR follows or arises as a consequence of the offence in the first, the offences in both the FIRs are same and hence, the second FIR will be impermissible.
Prevention against double jeopardy
Double jeopardy is made out when same evidence suffices to prove the allegations. Section 300 explicitly prohibits trial for same offence on same facts or transaction once the person is acquitted or convicted for it. In the case of Prem Chand Singh v. State of Uttar Pradesh, hence, it is held that if the substratum of FIRs is same, then mere addition of a few provisions in subsequent FIR does not justify it as being a distinct incident. In State of Rajasthan v Bhagwan Das, where multiple FIRs, with same subject-matter, have been filed in different jurisdictions and hence, falling in jurisdictions of different courts, Section 186 of the Code will be roped in to prevent unnecessary harassment of the accused and directions will be issued to stop the proceedings in other courts.
FIRs filed under Section 156(3)
Second FIRs filed on behest of directions issued by Magistrate under Section 156(3) of the Code is to be quashed unless a separate offence with distinct ingredients independent of those covered in the first investigation is found, similar to FIRs under Section 154.
Application of test of sameness
The question of ‘if the FIRs are on the same incident’ is a mixed question of law as well as facts and is determined on merits of each case. It is liable to be quashed if the answer to the question is affirmative but in cases where the FIRs post the first are broader and/ or is not inclusive of allegations in first, can be registered and investigated. Where the complaint contains rival version of same incident, it will take the form of counter FIR, two different FIRs, and investigation will be carried on basis of both the FIRs by the same investigating agency.
In Bank of Rajasthan v Keshav Bangur and Another, the court laid down and directed the trial court to decide the question of sameness of FIRs along with examining whether the allegations form part of same transaction or are separate occurrences. In relation to the same offence and against the same accused, if two FIRs are filed, but the subsequent FIR is not filed by the same individual as the first and contained a different version of the event, then the second FIR is maintainable. The Apex court in P.Shreekumar v State of Kerala and Others finding held that the second FIR is legally maintainable as it was filed by a different person, in nature of counter-complaint and made differing allegations and it has to be tried on merits.
In case of Nirmal Singh Kahlon v State of Punjab where second FIR was filed by CBI, after conducting preliminary inquiry identifying new factual information and separate offences on a wider scale, was held sustainable by the honourable court. In this case, the police had neither conducted fair investigation nor had discovered the larger looming conspiracy.
In another case of Chirra Shivraj v State of Andhra Pradesh, the first FIR was obtained from the deceased on receiving serious burns, who later died which was noted as a second FIR. The court observed that there cannot be multiple FIRs on same offence and any information pertinent to the offence is in furtherance to the first which can be incorporated as further information into the police diary. Hence, the court held that the second FIR was a mistake by the police; but as the contents of were not incorrect or malicious and did not prejudice the accused (now convicted), there will be no benefit of doubt arising from it to the convict.
Conclude
To conclude, as canvassed above from the provisions of the Act and multiple judgements, the question raised in this article is answered in negative. However, it does not imply that all subsequent FIRs are unsustainable. In other words, the law of the land is that any FIR on same offence, subsequent to the first, is liable to be quashed. Nonetheless, if the subject matter is distinct, or the FIRs are in nature of counter-complaints they are likely to be maintainable.
About the Author: Shilpha [2016-21] is pursuing B.A.LL.B (Hons) from Jindal Global Law School
Criminal Law Research & Review 