http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16

CASE NO.:

Appeal (crl.) 689 of 2001

Special Leave Petition (crl.) 1522 of 2000

PETITIONER:

T.T.ANTONY

Vs.

RESPONDENT:

STATE OF KERALA & ORS.

DATE OF JUDGMENT: 12/07/2001

BENCH:

S.S.M.Quadri, S.N.Phukan

JUDGMENT:

J U D G M E N T

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted in all the special leave petitions.

These four appeals arise out of the common judgment of a

Division Bench of the High Court of Kerala at Ernakulam in WA Nos.

2708/1999, 2709/1999, 2710/1999, 8/2000, 52/2000 and 200/2000

dated February 29, 2000. Criminal Appeal NO. of 2001 (arising

out of SLP(Crl.) No.1522/2000) is filed by T.T. Antony, Deputy

Collector and Executive Magistrate, Kannur; Civil Appeal No. of

2001 (Arising out of SLP(C) No. 8840/2000) is filed by fourteen

police constables; and Criminal Appeal Nos. of 2001

(Arising out of SLP(Crl.) Nos. 2724-25/2000 are filed by the State of

Kerala. These appeals relate to the same incident and raise common

questions of facts and law so they are being dealt with together.

The relevant facts, giving rise to these appeals, which have a

strong political backdrop, need to be noticed for appreciating the

contentions of the parties.

The Communist Party of India (Marxist), C.P.I.(M), is said to

have a strong hold in Kannur District of the State of Kerala. One

Mr.M.V. Raghavan who was once a comrade-in-arms in C.P.I.(M)

and was its M.L.A. for over 15 years, broke away from that party and

formed a new party -- 'The Communist Marxist Party' (CMP). He

was elected as an M.L.A on the ticket of CMP from the Azheekkode

Constituency, Kannur District. The CMP became a constituent of

United Democratic Front (UDF) which formed the Government and

was in power in the State of Kerala during the relevant period. He

was a Minister in UDF Government having the portfolio of Co-

operation and Ports. This gave rise to retribution in the rank and file

of C.P.I.(M) particularly in the youth wing (DYFI) which took upon

itself to prevent his visits to Kannur District. In January 1993 during

his visit to Azhikal (Kannur District) a few country-made bombs were

hurled on him. In view of that incident, the then Government ordered

elaborate security arrangements for all his visits to Kannur District. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16

appears, much against the advice of the district administration, the

Minister finalised his visit, for inauguration of the 'evening branch of

the Co-operative Urban Bank' in the Alakkandy Complex at

Kuthuparamba - Tellicherry Road (Kannur District) on November 25,

1994. Far from being auspicious, it turned out to be an ill-starred day

not only for the victims of police excesses and their families but also

for the public and the public authorities as five persons died and six

persons were injured in the police firing purportedly resorted to for

the protection of the Minister and of public and private properties. In

the melee which preceded the police firing more than hundred persons

suffered injuries in the lathi charge and a few police personnel also

sustained injuries.

The police opened fire at two places - (i) in the proximity of the

town hall on the orders of the Executive Magistrate and the Deputy

Superintendent of Police and (ii) in the vicinity of police station,

Kuthuparamba on the orders of the Superintendent of Police. In

respect of the occurrence near the town hall, the Assistant

Superintendent of Police of Thalassery registered Crime No.353/94 of

Kuthuparamba Police Station under Sections 143, 147, 148, 332,

353,324, 307 read with Section 149 IPC, Section 3(2)(e) of

P.D.P.P.Act and Sections 3 and 5 of Explosive Substances Act against

eight named and many other unidentifiable persons belonging to

CPI(M) including the President of DYFI. In regard to the occurrence

in the vicinity of the police station, the Superintendent of Police

registered Crime No.354/94 of Kuthuparamba Police Station under

Sections 143, 147, 148, 427, 307 read with Section 149 IPC and

Section 3(2)(e) of P.D.P.P.Act against unidentifiable persons of

CPI(M) for forming an unlawful assembly. Both the said crimes were

registered on the date of the incident -- on November 25, 1994. On

that day itself the Executive Magistrate submitted a report to the

District Collector who in turn informed the Commissioner and

Secretary to the Government regarding the police firing at

Kuthuparamba (Ex.P3). On November 26, 1994, the Superintendent

of Police sent a report of the incident of the previous day to Director

General of Police, Kerala (Ex.P-4).

That incident gave rise to public uproar and demand for

judicial inquiry. On January 20, 1995, the then Kerala Government of

UDF appointed Mr.K.Padmanabhan Nair, the learned District &

Sessions Judge, Thalassary as Commission of Inquiry under Section

3(I) of the Commission of Inquiry Act, 1952 to inquire into :

"(i) The circumstances which led to the firing by police

on 25.11.94 at Kuthuparamba Kannur District

which resulted in the death of five persons and

injuries to many others.

(ii) Whether the said firing by the police was justified.

(iii) The person/persons responsible for the firing.

(iv) Such other matters as the incidental to and arising

out of the above."

The 1996 assembly elections in the State of Kerala resulted in

the change of the Government. The UDF lost to LDF which came to

power and headed by CPI(M) formed the Government. On May 27,

1997 the Commission submitted its report to the LDF Government of

Kerala recording the following findings :

"(1) The uncomprising attitude of Sri M.V.Raghavan,

former Minister of Co-operation and Ports to

attend the inaugural function of the opening of the

evening branch of the Co-operative Urban Bank,

Koothuparamba inspite of the prior informations of

the possible consequences of his visit to

Kuthuparamba is the root cause for the firing. The

avoidable lathi charge which ignited the incidents

at the instance and leadership of Sri Abdul Hakkim

Bathery. Dy.S.P.Kannur paved way for the firing.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16

The failure on the part of Sri T.T.Antony,

Dy.Collector and Executive Magistrate to evaluate

and take stock of the situation ended in the police

firing resulting in the death of five persons and

injuries to many others.

(2) The police firing at Kuthuparamba on 25.11.94

was not justified.

(3) Sri M.V.Raghavan, the former Minister for Co-

operation and Ports. Sri Abdul Hakkim Bathery

Dy.S.P.Kannur and Sri T.T.Antony former

Dy.Collector, Kannur were responsible for the

police firing."

The report of the Commission was accepted by the

Government. On June 30, 1997, as a follow-up action, the Additional

Chief Secretary to the Government of Kerala, while enclosing a copy

of the said report, wrote to the Director General of Police regarding

acceptance of the report of the Commission by the Government and

directed that legal action be taken against those responsible on the

basis of findings of the Commission. The Director General of Police

issued orders to the Inspector General of Police (North Zone), on July

2, 1997, to register a case immediately and have the same investigated

by a senior officer. On July 4, 1997 the Inspector General of Police

noted that firing without justification by which people were killed

amounted to murder and issued direction to the Station House Officer

to register a case under the appropriate sections and forward the

investigation copy of the F.I.R. to the Deputy Inspector General of

Police, North Zone, for urgent personal investigation. On that

information the Deputy Superintendent of Police, Thalassery,

registered Crime No.268/97 of Kuthuparamba Police Station under

Section 302, IPC arraigning the said M.V.Raghavan, A.H.Bathery

and T.T.Antony as accused 1 to 3 respectively (Ex.P-6). On

September 29, 1998, the DIG of Police who investigated Crime

No.268/97 filed interim report (Ex.P-8) in the court of the Judicial

First Class Magistrate, Kuthuparamba implicating 19 police officers

including R.A. Chandrasekhar and fourteen constables who are

parties to these appeals.

At that stage three Writ Petitions - O.P.No.3408/98 by the

Executive Magistrate (T.T. Antony); O.P.No.24401/98 by the

Assistant Superintendent of Police (R.A.Chandrasekhar) and

O.P.No.23702/99 by 14 constables (Damodaran and 13 others) - were

filed in the High Court of Kerala praying to quash the F.I.R. in Crime

No.268/97; alternatively for directing investigation into the said crime

by the C.B.I.

It is noticed that cases registered as Crime Nos.353/94 and

354/94 of Kuthuparamba Police Station which were mainly against

the workers and DYFI (youth wing of CPI(M)) came to be closed as

being false and undetected some time in April 1999 and June 1999

respectively after the said Crime No. 268/97 of Kuthumparamba

Police Station was registered.

The learned Single Judge who dealt with the said O.Ps thought

it fit, having regard to peculiar facts and circumstances of the case, to

have the case re-investigated by the C.B.I. instead of quashing the FIR

at the threshold and accordingly disposed of the writ petitions on

November 29, 1999. Against the said judgment of the learned Single

Judge, six writ appeals were filed - three by the said writ petitioners

and three by the State of Kerala. A Division Bench of the High Court,

by its judgment dated February 29, 2000, confirmed in part the order

of the learned Single Judge in regard to quashing the FIR in the said

Crime No.268/97 of Kuthuparamba Police Station by ordering that as

against the Assistant Superintendent of Police the FIR be quashed;

however, it directed a fresh investigation by the State Police headed

by one of the three senior officers named in the judgment instead of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16

fresh investigation by CBI. Dissatisfied by the said judgment of the

Division Bench, the appellants preferred the above-mentioned

appeals.

Mr.R.F.Nariman, the learned senior counsel appearing for the

Executive Magistrate, has argued that the allegations against him do

not constitute any offence; they relate to discharge of his official

duties in evaluating the law and order situation at Kuthuparamba in

the following background : a mob of about 2000 DYFI workers

assembled in front of Town Hall, the venue of the Minister's

programme, and on arrival of the Minister, the crowd surged forward

which prompted the Dy.S.P. and the police party under him, who

were on escort duty with the Minister, to lathi charge; the agitated

crowd turned violent and pelted stones at the police and motorcade of

the Minister, set fire the Government vehicles parked in the nearby

electricity office and indulged in arson; on finding that both the lathi

charge as well as tear gas shells failed to control the mob, he ordered

the ASP to disperse the mob by resorting to firing. It was pointed out

that the Inquiry Commission also found that DYFI had resorted to a

very crude and uncivilized form of agitation. The said action of the

Executive Magistrate, it was submitted, being protected under Section

132 of the Code of Criminal Procedure, could never be termed as an

offence so implicating him as an accused was wholly unjustified and

illegal as such criminal proceedings against him ought to be quashed.

It was brought to our notice that immediately after the police firing,

the appellant submitted a complete report of the incident to the

District Collector on November 26, 1994; the Additional District

Magistrate and the S.P. had also sent their reports of the incident. The

Collector in turn reported the incident to the Government on

November 27, 1994. It was highlighted that all the police personnel on

duty on the scene of occurrence were rewarded for their meritorious

services and the constables who were injured were paid Rs.500/- each

ex-gratia. The wind changed after the change in the Government; it

resulted in arresting the said Executive Magistrate on the charge

under Section 302 of Indian Penal Code and shielding the S.P. who

also ordered firing which caused the death of five persons by

charging him only under Section 201 I.P.C. as he turned an approver.

It is also submitted that the Executive Magistrate has been under

suspension from 1997 and thus lost one chance of promotion and if

he is put to the ordeal of trial on the basis of the final report submitted

by the new investigating team, which is a mere re-production of the

first report, his career will be seriously affected.

Mr.Mahendra Anand, the learned Senior counsel, has argued

that out of 350 police personnel deployed to take care of law and

order in Kuthuparamba, fourteen constables for whom he is

appearing, are arbitrarily booked under Section 302 read with Section

34 I.P.C.; they were under the leadership of the ASP and obeyed his

orders; the criminal proceedings against him were quashed by the

Division Bench of the High Court on the ground that he was

exonerated by the Commission of Inquiry; all those reasons which

justify quashing of the proceedings against ASP should equally apply

to them and therefore as against them also the proceeding should have

been quashed. The constables, it is submitted, were given cash award

for good performance of their duties during very difficult situation by

the then Government but after the change of the Government they are

made to face the trial when indeed there could be no case against them

in view of Sections 76 and 79 I.P.C. and that their action cannot be

termed as offence much less murder under Section 302 I.P.C. The

investigation has proceeded with pre-determined conclusions; the

FIRs which were lodged on the date of the occurrence (FIR

Nos.353/94 and 354/94) against DYFI, the workers and the leaders of

CPI(M), were reported as false and got closed on their coming into

power subsequently; the SP who was in overall charge of the law and

order and who ordered firing which resulted in the death of five

persons turned approver giving statement contrary to the report

submitted by him earlier, is charged only under Section 201 I.P.C. but

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16

on the basis of tainted investigations the constables are charged under

Section 302 I.P.C. It is further submitted that to concoct the evidence

against the appellants-accused, two special prosecutors have been

appointed to assist the investigators. The alternative contention urged

on their behalf is that as on the face of it the investigation has not

been fair and impartial and is also vitiated by mala fide and

irregularity, fresh investigation by CBI may be ordered.

The learned Solicitor General appearing for the State of Kerala

has contended that when the Division Bench suggested that a fresh

team should investigate the crime, none of the accused objected to that

course of action on June 29, 2000; the new team after due

investigation filed the final report in the court of the Magistrate and it

is only thereafter that this Court passed interim order on July 24,

2000, therefore, they cannot be permitted to challenge the report in

this court or seek direction for fresh investigation by CBI; as the FIR

discloses a cognizable offence, no challenge against investigation into

the offence is permissible. The FIR, it is submitted, is not necessarily

against an offender but is in respect of an offence which is cognizable

and requires investigation and collection of evidence by the

investigating agency. Both the learned Single Judge as well as the

learned Division Bench of the High Court did not find any mala fide

intention in filing the FIR; they took note of the fact that the FIR was

lodged on the basis of findings recorded by the Inquiry Commission

that the firing was unjustified, therefore, there could be no

interference with the investigation by the police in view of the

guidelines laid down by this Court in Bhajan Lal's case. Inasmuch as

after investigation the final report has been filed and the learned

Magistrate has taken cognizance and issued summons, the trial court

can consider the pleas of the accused under Section 227 of Cr.P.C. but

at this stage neither the investigation can be challenged in these

appeals nor can the sufficiency of the evidence be gone into by the

High Court/the Supreme Court except to see whether a cognizable

offence has been disclosed. Insofar as the appeal against quashing of

criminal proceedings against the ASP by the Division Bench is

concerned, it is contended that the reasons given by the High Court

are untenable. It is submitted that the order directing firing at the mob

was unjustified as the crowd was not violent; there was no danger to

the life of the Minister as the crowd had withdrawn from the Town

Hall and that the lathi charge and the firing started by the escort police

party headed by Dy.SP without lawful orders from competent

authority; the escort party left the Minister and went far away to the

area under the control of the ASP who did not prevent the escort party

from resorting to unjustified and unlawful firing on the crowd and that

the ASP himself also ordered firing on peaceful crowd of people. The

learned Solicitor General urged that the facts disclosed in the

investigation showed complicity of ASP in the crime but as the

criminal proceedings against him were quashed by the Division Bench

of the High Court, the material could not be referred to in the final

report nor could he be included in the array of the accused. It is

argued that the Commission of Inquiry has no judicial powers and its

report is purely recommendatory and not effective proprio vigore and

that the findings of the Commission have also no evidentiary value,

hence the accused persons cannot claim to be exonerated on the basis

of its findings particularly when, in the investigation, sufficient

material has come to light pointing to the involvement of Deputy SP,

ASP and others. As none of the requirements for quashing the

investigation is present, submits the learned Solicitor General, the

High Court erred in interfering with the investigation of the

cognizable offence by quashing the proceedings against the ASP. It

is argued that the High Court committed a serious illegality in coming

to the conclusion that once the Government accepts the Report of

Commission, the investigating agency cannot give a go by to it and

failed to notice that the role of the Government in any investigation is

only supervisory and it cannot dictate either the mode or the outcome

of the investigation, therefore the investigating agency rightly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16

conducted investigation uninfluenced by acceptance of Commission's

report by the Government. Regarding the Executive Magistrate, it is

submitted, that he is a party to the conspiracy which resulted in the

death of innocent persons and that the legality of the FIR and the

investigation cannot be challenged or examined on the basis of

disputed questions of fact in proceedings under Article 226/227 of the

Constitution. Inasmuch as in compliance with Section 132(1) Cr.P.C.

sanction of the State Government has been obtained, the question

whether the Executive Magistrate is protected under Section 129 of

Cr.P.C. is a matter of defence in the trial and cannot be gone into at

this stage. With regard to the police constables, it is contended that

though they belong to different groups, namely, 'escort' party and

'law and order' party they subsequently merged into one group and

resorted to indiscriminate firing; in any event they are not entitled to

the benefit of Section 132(2) of Cr.P.C. which is applicable only to

the armed forces; further the police constables who participated in

unjustified firing cannot be permitted to plead defence of obedience to

the order of the superior. It is argued that the material collected in

investigation reveals that the Dy. SP took rifle from one Abdul Salam

to whom it was officially issued and handed it over to Damodaran

who had no authority to use the rifle for firing thus he resorted to

deliberate illegal firing. The persons who fell to the shots and died

were found to be far away from the Town Hall, the place where the

Minister was to address a meeting, which shows that callous and

indiscriminate firing was resorted to by the police in violation of the

guidelines in the Police Manual. It is fairly conceded by the learned

Solicitor General that if this Court is not inclined to interfere with the

judgment under challenge in Chandrasekhar's case, the case of the

constables cannot be dealt with differently. It is further submitted that

no allegation was made against any of the members of the new

investigating team; even in the appeal, there is no mention of any bias

or malice against any of the officers of the new investigating team,

therefore, at this stage the plea for a fresh investigation by a different

agency, CBI, is not called for nor is it permissible in view of the

dictum of this Court in Chandrasekhar vs. State of Kerala [1998 (5)

SCC 223]. From the fact that the case diary runs into six volumes,

submits the learned Solicitor General, it is evident that thorough

investigation has been made and at this stage no useful purpose will

be served by directing a fresh investigation by a new agency which

will be a futile exercise. It is argued that by re-production of a portion

of the report of the earlier investigating team in the final report

submitted by the new team, which deals with narration of sequence of

events, non-application of mind cannot be inferred.

At the re-hearing of the appeals, the learned counsel for the

parties addressed arguments on the question of the legality of the

second FIR registered as Crime No.268/97 and the investigation that

followed it in respect of the cognizable offence mentioned therein

after about three years of the occurrence when in that regard two FIRs

pertaining to two different places were already filed and registered as

Crime No.353/94 and Crime No.354/94 on the date of the occurrence

-- November 25, 1994 and the investigations in those cases were

pending. The learned counsel for the accused have argued that

registration of a fresh information in respect of the very same incident

as an FIR under Section 154 of Cr.P.C. is not valid, therefore all the

steps taken pursuant thereto including investigation are illegal and

liable to be quashed. The learned Solicitor General countered them

stating that no illegality can be attached to the second FIR or the

investigation made thereunder as nothing prevented the investigating

agency from making further investigation on the basis of the first FIR

in view of the subsequent information received and forwarding a

further report; at any rate, the objection is merely one of a form and

not of substance and it makes no difference so far as the final report is

concerned.

On these contentions, four points arise for determination:

(i) whether registration of a fresh case, Crime

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16

No.268/97, Kuthuparamba Police Station

on the basis of the letter of the DGP dated

July 2, 1997 which is in the nature of the

second FIR under Section 154 of Cr.P.C., is

valid and can it form the basis of a fresh

investigation?

(ii) whether the appellants in Appeal Nos.

__________(arising out of SLP(Crl.)

1522/00 and SLP(C) 8840/00) and

respondent in Appeal Nos. (arising

out of SLP(Crl.) Nos. 2724-25/00) have

otherwise made out a case for quashing of

proceedings Crime No.268/97

Kuthuparamba Police Station ;

(iii) what is the effect of the report of Sri. K.

Padmanabhan Commission of Inquiry; and

(iv) whether the facts and the circumstances of

the case justify a fresh investigation by CBI.

As points (i) and (ii) are interconnected, it will be convenient to

deal with them together. Inasmuch as the germane question relates to

registration of an F.I.R., we may usefully refer to Section 154 of the

Code of Criminal Procedure, 1973 (Cr.P.C.) which reads as under :

"154. Information in cognizable cases. -

(1) Every information relating to the commission

of a cognizable offence, if given orally to an

officer in charge of a police station, shall be

reduced to writing by him or under his

direction, and be read over to the informant;

and every such information, whether given in

writing or reduced to writing as aforesaid, shall

be signed by the person giving it, and the

substance thereof shall be entered in a book to

be kept by such officer in such form as the

State Government may prescribe in this behalf.

(2) A copy of the information as recorded under

sub-section (1) shall be given forthwith, free of

cost, to the informant.

(3) Any person aggrieved by a refusal on the part

of an officer in charge of a police station to

record the information referred to in sub-

section (1) may send the substance of such

information, in writing and by post, to the

Superintendent of Police concerned who, if

satisfied that such information discloses the

commission of a cognizable offence, shall

either investigate the case himself or direct an

investigation to be made by any police officer

subordinate to him, in the manner provided by

this Code, and such officer shall have all the

powers of an officer in charge of the police

station in relation to that offence.

Sub-section (1) of Section 154 of Cr.P.C. contains four

mandates to an officer in-charge of a police station. The first enjoins

that every information relating to commission of a cognizable offence

if given orally shall be reduced to writing and 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16

information shall be entered in the station house diary. It will be apt

to note here a further directive contained in sub-section (1) of Section

157 of Cr.P.C. which provides 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 or depute

his subordinate officer to investigate the facts and circumstances of

the case. Sub-section (2) entitles the informant to receive a copy of

the information, as recorded under sub-section (1), free of cost. Sub-

section (3) says that in the event of an officer in charge of a police

station refusing to record the information as postulated under sub-

section (1), a person aggrieved thereby may send the substance of

such information in writing and by post to the Superintendent of

Police concerned who is given an option either to investigate the case

himself or direct the investigation to be made by a police officer

subordinate to him, in the manner provided by Cr.P.C., if he is

satisfied that the information discloses the commission of a

cognizable offence. The police officer to whom investigation is

entrusted by the Superintendent of Police has all the powers of an

officer in charge of the police station in relation to that offence.

An information given under sub-section (1) of Section 154 of

Cr.P.C. is commonly known as First Information Report (F.I.R.)

though this term is not used in the Code. It is a very important

document. And as its nick name suggests it is the earliest and the first

information of a cognizable offence recorded by an officer in charge

of a police station. It sets the criminal law into motion and marks the

commencement of the investigation which ends up with the formation

of opinion under Section 169 or 170 of Cr.P.C., as the case may be,

and forwarding of a police report under Section 173 of Cr.P.C. It is

quite possible and it happens not infrequently that more informations

than one are given to a police officer in charge of a police station in

respect of the same incident involving one or more than one

cognizable offences. In such a case he need not enter every one of

them in the station house diary and this is implied in Section 154 of

Cr.P.C. Apart from a vague information by a phone call or a cryptic

telegram, the information first entered in the station house diary, kept

for this purpose, by a police officer in charge of a police station is the

First Information Report - F.I.R. postulated by Section 154 of Cr.P.C.

All other informations made orally or in writing after the

commencement of the investigation into the cognizable offence

disclosed from the facts mentioned in the First Information Report and

entered in the station house diary by the police officer or such other

cognizable offences as may come to his notice during the

investigation, will be statements falling under Section 162 of Cr.P.C.

No such information/statement can properly be treated as an F.I.R.

and entered in the station house diary again, as it would in effect be

a second FIR and the same cannot be in conformity with the scheme

of the Cr.P.C. Take a case where an FIR mentions cognizable offence

under Section 307 or 326 I.P.C. and the investigating agency learns

during the investigation or receives a fresh information that the victim

died, no fresh FIR under Section 302 I.P.C. need be registered which

will be irregular; in such a case alteration of the provision of law in

the first FIR is the proper course to adopt. Let us consider a different

situation in which H having killed W, his wife, informs the police that

she is killed by an unknown person or knowing that W is killed by his

mother or sister, H owns up the responsibility and during investigation

the truth is detected; it does not require filing of fresh FIR against H -

the real offender-who can be arraigned in the report under Section

173(2) or 173(8) of Cr.P.C., as the case may be. It is of course

permissible for the investigating officer to send up a report to the

concerned Magistrate even earlier that investigation is being directed

against the person suspected to be the accused.

The scheme of the Cr.P.C. is that an officer in charge of a

Police Station has to commence investigation as provided in Section

156 or 157 of Cr.P.C. on the basis of entry of the First Information

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16

Report, on coming to know of the commission of a cognizable

offence. On completion of investigation and on the basis of evidence

collected he has to form opinion under Section 169 or 170 of Cr.P.C.,

as the case may be, and forward his report to the concerned Magistrate

under Section 173(2) of Cr.P.C. However, even after filing such a

report if he comes into possession of further information or material,

he need not register a fresh FIR, he is empowered to make further

investigation, normally with the leave of the court, and where during

further investigation he collects further evidence, oral or documentary,

he is obliged to forward the same with one or more further reports;

this is the import of sub-section (8) of Section 173 Cr.P.C.

From the above discussion it follows that under the scheme of

the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173

of Cr.P.C. only the earliest or the first information in regard to the

commission of a cognizable offence satisfies the requirements of

Section 154 Cr.P.C. Thus there can be no second F.I.R. and

consequently 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. On receipt of information about a cognizable offence or an

incident giving rise to a cognizable offence or offences and on

entering the F.I.R. in the station house diary, the officer in charge of a

Police Station 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 of

the Cr.P.C.

The learned Solicitor General relied on the judgment of this

Court in Ram Lal Narang & Ors. Vs. State (Delhi Administration

[1979 (2) S.C.C. 322] (referred to as Narangs case) to contend that

there can be a second F.I.R. in respect of the same subject matter. In

that case the contention urged by the appellant was that the police had

committed illegality, acted without jurisdiction in investigating into

the second case and the Delhi Court acted illegally in taking

cognizance of that (the second) case. A reference to the facts of that

case would be interesting. Two precious antique pillars of sand stone

were deposited in the court of Ilaqa Magistrate, Karnal, as stolen

property. One N.N. Malik filed an application before the Magistrate

seeking custody of the pillars to make in detail study on the pretext

that he was a research scholar. It appears that the then Chief Judicial

Magistrate of Karnal, (H.L. Mehra), was a friend of Malik. At the

instance of Mehra the said Ilaqa Magistrate ordered that the custody

of the pillars be given to Malik on his executing a bond. About three

months thereafter Malik deposited two pillars in the court of Ilaqa

Magistrate, Karnal. After sometime it came to light that the pillars

returned by Malik were not the original genuine pillars but were fake

pillars. An F.I.R. was lodged against both Malik and Mehra under

Section 120-B read with Sections 406 and 420 of I.P.C. alleging

conspiracy to commit criminal breach of trust and cheating. The

C.B.I. after necessary investigation filed charge sheet in the court of

Special Magistrate, Ambala, against both of them. Ultimately on the

application of the public prosecutor the case was permitted to be

withdrawn and the accused were discharged. Sometime later the

original genuine pillars were found in London which led to

registering an F.I.R. in Delhi under Section 120-B read with Section

411 of I.P.C, and Section 25(1) of the Antiquities and Art Treasures

Act, 1972 against three persons who were brothers (referred to as

'Narangs'). The gravamen of the charge against them was that they,

Malik and Mehra, conspired together to obtain custody of the genuine

pillars, got duplicate pillars made by experienced sculptors and had

them substituted with a view to smuggle out the original genuine

pillars to London. After issuing process for appearance of Narangs by

the Magistrate at Delhi, an application was filed for dropping the

proceedings against them on the ground that the entire second

investigation was illegal as the case on the same facts was already

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16

pending before Ambala Court, therefore, the Delhi Court acted

without jurisdiction in taking cognizance of the case on the basis of

illegal investigation and the report forwarded by the police. The

Magistrate referred the case to the High Court and Narangs also filed

an application under Section 482 of Cr.P.C. to quash the proceedings.

The High Court declined to quash the proceedings, dismissed the

application of Narangs and thus answered the reference. On appeal to

this Court it was contended that the subject-matter of the two F.I.Rs.

and two charge-sheets being the same there was an implied bar on the

power of the police to investigate into the subsequent F.I.R. and the

court at Delhi to take cognizance upon the report of such information.

This Court indicated that the real question was whether the two

conspiracies were in substance and truth the same and held that the

conspiracies in the two cases were not identical. It appears to us that

the Court did not repel the contention of the appellant regarding the

illegality of the second FIR and the investigation based thereon being

vitiated, but on facts found that the two FIRs in truth and substance

were different - the first was a smaller conspiracy and the second was

the larger conspiracy as it turned out eventually. It was pointed out

that even under the Code of 1898 after filing of final report there

could be further investigation and forwarding of further report. The

1973 Cr.P.C. specifically provides for further investigation after

forwarding of report under sub-section (2) of Section 173 of Cr.P.C.

and forwarding of further report or reports to the concerned

Magistrate under Section 173(8) of Cr.P.C. It follows that if the

gravamen of the charges in the two FIRs - the first and the second - is

in substance and truth the same, registering the second FIR and

making fresh investigation and forwarding report under Section 173

Cr.P.C. will be irregular and the Court can not take cognizance of the

same.

On a perusal of the judgment of this Court in M.Krishna vs.

State of Karnataka [1999 (3) SCC 247], we do not find anything

contra to what is stated above. The case is distinguishable on facts of

that case. In the case on hand the second FIR is filed in respect of

the same incident and on the same facts after about three years.

The right of the police to investigate into a cognizable offence

is a statutory right over which the court does not possess any

supervisory jurisdiction under the Cr.P.C.. In Emperor vs. Khwaja

Nazir Ahmad [AIR (32) 1945 PC 18], the Privy Council spelt out the

power of the investigation of the police, as follows :

"In India as has been shown there is a statutory

right on the part of the police to investigate the

circumstances of an alleged cognizable crime

without requiring any authority from the judicial

authorities, and it would, as their Lordships 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."

This plenary power of the police to investigate a cognizable

offence is, however, not unlimited. It is subject to certain well

recognised limitation. One of them, is pointed out by the Privy

Council, thus :

"if 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."

Where the police transgresses its statutory power of

investigation the High Court under Section 482 Cr.P.C. or Article

226/227 of the Constitution and this Court in appropriate case can

interdict the investigation to prevent abuse of the process of the Court

or otherwise to secure the ends of justice.

In State of Haryana vs. Bhajan Lal & Ors. [1992 Suppl.(1)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16

SCC 335], after exhaustive consideration of the decisions of this

Court in State of West Bengal vs. Swapan Kumar Guha (1982) 1

SCC 561; S.N.Sharma vs. Bipen Kumar Tiwari (1970) 1 SCC 653;

R.P.Kapur vs. State of Punjab (1960) 3 SCR 388; Nandini Satpathy

vs. P.L.Dani (1978) 2 SCC 424 and Prabhu Dayal Deorah vs. District

Magistrate, Kamrup (1974) 1 SCC 103], approving the judgment of

the Privy Council in Khwaja Nazir Ahmad's case (supra), it was

concluded in para 102 as follows :

"In the backdrop of the interpretation of the

various relevant provisions of the code under

Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions

relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted

and reproduced above, we give the following

categories of cases by way of illustration wherein

such power could be exercised either to prevent

abuse of the process of any court or otherwise to

secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined

and sufficiently channelised and inflexible

guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein

such power should be exercised.

(1) Where the allegations made in the first

information report or the complaint, even if

they are taken at their face value and

accepted in their entirety do not prima facie

constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information

report and other materials, if any,

accompanying the FIR do not disclose a

cognizable offence, justifying an

investigation by police officers under Section

156(1) of the Code except under an order of a

Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in

the FIR or complaint and the evidence

collected in support of the same do not

disclose the commission of any offence and

make out a case against the accused.

(4) Where the allegations in the FIR do not

constitute a cognizable offence but constitute

only a non-cognizable offence, no

investigation is permitted by a police officer

without an order of a Magistrate as

contemplated under Section 155(2) of the

Code.

(5) Where the allegations made in the FIR or

complaint are so absurd and inherently

improbable on the basis of which no prudent

person can ever reach a just conclusion that

there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar engrafted

in any of the provisions of the Code or the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16

concerned Act (under which a criminal

proceeding is instituted) to the institution and

continuance of the proceedings and/or where

there is a specific provision in the Code or

the concerned Act, providing efficacious

redress for the grievance of the aggrieved

party.

(7) Where a criminal proceeding is manifestly

attended with mala fide and/or where the

proceeding is maliciously instituted with an

ulterior motive for wrecking vengeance on

the accused and with a view to spite him due

to private and personal grudge."

The above list, as noted, is illustrative and not exhaustive.

A just balance between the fundamental rights of the citizens

under Articles 19 and 21 of the Constitution and the expansive power

of the police to investigate a cognizable offence has to be struck by

the Court. There cannot be any controversy that sub-section (8) of

Section 173 Cr.P.C. empowers the police to make further

investigation, obtain further evidence (both oral and documentary)

and forward a further report or reports to the Magistrate. In Narangs'

case (supra) it was, however, observed that it would be appropriate to

conduct further investigation with the permission of the Court.

However, the sweeping power of investigation does not warrant

subjecting a citizen each time to 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 whether before

or after filing the final report under Section 173(2) Cr.P.C. It would

clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a

case of abuse of the statutory power of investigation in a given case.

In our view 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 underway or final report under

Section 173(2) has been forwarded to the Magistrate, may be a fit

case for exercise of power under Section 482 Cr.P.C. or under Article

226/227 of the Constitution.

Coming to the facts of this case, which are not free from

political overtones, the incident which gave rise to registering of

FIRs, took place on November 25, 1994 on the occasion of the visit of

the Minister to Alakkandy Complex at Kuthuparamba, Tellicherry

Road (Kannur District) for inauguration of the evening branch of the

Co-operative Urban Bank. The events that developed there led to

firing by police at two places -- (i) in the vicinity of town hall for

which FIR was lodged and Crime No.353/94 under Sections 143, 147,

148, 332, 353, 324, 307 read with Section 149 IPC, Section 3(2)(e) of

P.D.P.P.Act and Sections 3 and 5 of Explosive Substances Act, was

registered and (ii) in the vicinity of the Police Station, Kuthuparamba

in respect of which FIR was filed and Crime No.354/94 of

Kuthuparamba Police Station under Sections 143, 147, 148, 307 and

427 read with Section 149 IPC and Section 3(2)(e) of P.D.P.P.Act was

registered. While the investigations on the basis of the said FIRs were

pending, the report of Mr.K.Padmanabhan Nair, Inquiry Commission,

was submitted to the Government. On June 30, 1997, the Additional

Chief Secretary wrote to the Director-General of Police that the

Government had accepted the report of the Commission and directed

that the legal action be taken against those responsible on the basis of

the findings of the Commission. On July 2, 1997, the Director-

General of Police, however, wrote to Inspector General of Police

(North Zone) to register a case immediately and have the same

investigated by a senior officer. Two days thereafter, the Inspector

General of Police added his own remarks - "firing without

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16

justification by which people were killed amounted to murder" - and

ordered the Station House Officer to register a case under the

appropriate sections and forward the investigation copy of the FIR to

the Deputy Inspector General of Police (North Zone) for urgent

personal investigation. On the date when the Additional Chief

Secretary wrote to the Director-General of Police, the investigations

initiated in the said two crimes relating to the same incident were in

progress. The investigating agency should have taken advantage of

the report of the Commission for a proper further investigation into

the case. On the facts which might come to light during investigation,

if necessary, the investigating agency should have altered the

offences under appropriate section of the relevant Acts and concluded

the investigations. In view of the orders of the Director General of

Police to register a case and on the further direction of the Inspector

General of Police, the officer in-charge of Police Station registered

Crime No.268/97 of Kuthuparamba Police Station. A comparison and

critical examination of the FIRs in Crime Nos.353 & 354 of 1994 on

one hand and FIR in Crime No.268/97 on the other, discloses that the

date and place of occurrence are the same; there is alluding reference

to the deaths caused due to police firing in the FIRs in Crime Nos. 353

and 354 of 1994. In any event, that fact was evident on the scene of

occurrence. The narration of events, which we need not repeat here,

are almost the same. The additional averments in Crime No.268/97

are based on the findings in the report of the Commission. Having

regard to the test laid down by this Court in Narangs'case (supra),

with which we are in respectful agreement, we find that in truth and

substance the essence of the offence in Crime Nos. 353 and 354 of

1994 is the same as in Crime No. 268 of 1997 of Kuthuparamba

Police Station. In our view, in sending information in regard to the

same incident, duly enclosing a copy of the report of the commission

of inquiry, to the Inspector General of Police for appropriate action,

the Additional Chief Secretary adopted the right course of action.

Perhaps the endorsement of the Inspector General of Police for

registration of a case misled the subordinate police officers and the

said letter with regard to the incident of November 25, 1994 at

Kuthuparamba was registered again under Section 154 of Cr.P.C.

which would be the second FIR and, in our opinion, on the facts of

this case, was irregular and a fresh investigation by the investigating

agency was unwarranted and illegal. On that date the investigations

in the earlier cases (Crime Nos.353 and 354 of 1994) were pending.

The correct course of action should have been to take note of the

findings and the contents of the report, streamline the investigation to

ascertain the true and correct facts, collect the evidence in support

thereof, form an opinion under Sections 169 and 170 Cr.P.C., as the

case may be, and forward the report/reports under Section 173(2) or

Section 173(8) Cr.P.C. to the concerned Magistrate. The course

adopted in this case, namely, the registration of the information as the

second FIR in regard to the same incident and making a fresh

investigation is not permissible under the scheme of the provisions of

the Cr.P.C. as pointed out above, therefore, the investigation

undertaken and the report thereof cannot but be invalid. We have,

therefore, no option except to quash the same leaving it open to the

investigating agency to seek permission in Crime No.353/94 or

354/94 of the Magistrate to make further investigation, forward

further report or reports and thus proceed in accordance with law.

Regarding point No.3, the principles as to the position of

Commission of Inquiry appointed under the Commissions of Inquiry

Act, the report and finding recorded by the Commission are too well-

settled to admit of any elaborate discussion except to reiterate them

here. As long back as in 1904, the Privy Council in Re: Maharaja

Madhava Singh [31 Indian Appeals 239 (PC)] laid down,

"....it is sufficient to say that the

Commission in question was one appointed by

the Viceroy himself for the information of his

own mind, in order that he should not act in his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16

political and sovereign character otherwise than

in accordance with the dictates of justice and

equity, and was not in any sense a Court.....".

A Division Bench of the Nagpur High Court in M.V.Rajwade,

I.A.S., District Magistrate vs. Dr.S.M.Hassan & Ors. [AIR 1954

Nagpur 71] following the said judgment of the Privy Council, held

that the Commission was a fact finding body meant only to instruct

the mind of the Government without producing any document of a

judicial nature and that findings of the Commission of Inquiry were

not definitive like a judgment. It was also pointed out that there was

no accuser, no accused and no specific charges for trial; nor was the

Government, under the law, required to pronounce, one way or the

other, on the findings of the Commission. That judgment was

approved by various judgments of this Court.

In Shri Ram Krishna Dalmia vs. Shri Justice S.R.Tendolkar &

Ors. [1959 SCR 279], a Constitution Bench of this Court while

considering the constitutional validity of the Commissions of Inquiry

Act, indicated that the Commission is merely to investigate, record its

findings and make its recommendations which are not enforceable

proprio vigore and that the inquiry or report cannot be looked upon

as judicial inquiry in the sense of its being an exercise of judicial

function properly so called. The recommendations of the Commission

of Inquiry are of great importance to the Government in order to

enable it to make up its mind as to what legislative or administrative

measures should be adopted to eradicate the evil found or to

implement the beneficial objects it has in view. It would be

appropriate to notice the following observations of the Constitution

Bench :

"But seeing that the Commission of Inquiry has no

judicial powers and its report will purely be

recommendatory and not effective proprio vigore

and the statement made by any person before the

Commission of Inquiry is, under section 6 of the

Act, wholly inadmissible in evidence in any future

proceedings, civil or criminal, there can be no

point in the Commission of Inquiry making

recommendations for taking any action "as and by

way of securing redress or punishment" which, in

agreement with the High Court, we think, refers, in

the context, to wrongs already done or committed,

for redress or punishment for such wrongs, if any,

has to be imposed by a court of law properly

constituted exercising its own discretion on the

`facts and circumstances of the case and without

being in any way influenced by the view of any

person or body, howsoever august or high powered

it may be."

In State of Karnataka vs. Union of India Anr. [1977 (4) SCC

608], the observations referred to above were approved by a seven-

Judge Bench of this Court. In Sham Kant vs. State of Maharashtra

[1992 Suppl.(2) SCC 521], it was held that the findings of the Inquiry

Commission would not be binding on the Supreme Court. There, the

question was whether an undertrial died due to injuries sustained by

him in police custody. The report of the Commission of Inquiry

mentioned that the injuries possibly might have been sustained by him

even prior to his arrest. In the appeal arising out of conviction and

sentence of the concerned police officer, this Court, on material before

it, found that the victim died on account of ill treatment meted out by

the police and held that the findings of the Commission would not

bind this Court.

It is thus seen that the report and findings of the Commission of

Inquiry are meant for information of the Government. Acceptance of

the report of the Commission by the Government would only suggest

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16

that being bound by the Rule of law and having duty to act fairly, it

has endorsed to act upon it. The duty of the police - investigating

agency of the State - is to act in accordance with the law of the land.

This is best described by the learned law Lord - Lord Denning - in R.

v. Metropolitan Police Commissioner [1968 (1) All E.L.R. 763 at

p.769] observed as follows :

"I hold it to be the duty of the Commissioner of

Police, as it is of every chief constable, to enforce

the law of the land. He must take steps so to post

his men that crimes may be detected; and that

honest citizens may go about their affairs in peace.

He must decide whether or no suspected persons

are to be prosecuted; and, if need be, bring the

prosecution or see that it is brought; but in all these

things he is not the servant of anyone, save of the

law itself."

Acting thus the investigating agency may with advantage

make use of the report of the Commission in its onerous task of

investigation bearing in mind that it does not preclude the

investigating agency from forming a different opinion under Section

169/170 of Cr.P.C. if the evidence obtained by it supports such a

conclusion. In our view, the Courts civil or criminal are not bound by

the report or findings of the Commission of Inquiry as they have to

arrive at their own decision on the evidence placed before them in

accordance with law.

For the aforementioned reasons, the registration of the second

FIR under Section 154 of Cr.P.C. on the basis of the letter of the

Director General of Police as Crime No.268/97 of Kuthuparamba

Police Station is not valid and consequently the investigation made

pursuant thereto is of no legal consequence, they are accordingly

quashed. We hasten to add that this does not preclude the

investigating agency from seeking leave of the Court in Crime

No.353/94 and Crime No.354/94 for making further investigations

and filing a further report or reports under Section 173(8) of Cr.P.C.

before the competent Magistrate in the said cases. In this view of the

matter, we are not inclined to interfere with the judgment of the High

Court under challenge insofar as it relates to quashing of Crime No.

268/97 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.

On this conclusion it is unnecessary to deal with the other

aspects of the case including the fourth point, namely to direct

investigation of the case by the C.B.I.

Criminal Appeal No. of 2001 [arising out of SLP (Crl.)

No.1522/2000] and Civil Appeal No. of 2001 [arising out of

SLP(C) No.8840/2000] filed by the appellants [T.T.Antony and

Damodaran P. & Ors.respectively] are allowed. Criminal Appeal

Nos. of 2001 [arising out of SLP(Crl.) Nos.2724-25/2000] filed

by the State of Kerala are dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2001

(Arising out of SLP (Crl.) No.1522/2000)

T.T.Antony ... Appellant

Versus

State of Kerala & Ors. ... Respondents

W I T H

CIVIL APPEAL NO. OF 2001

(Arising out of SLP (C) No.8840/2000)