Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 905 OF 2009

Yanab Sheikh @ Gagu … Appellant

Versus

State of West Bengal …

Respondent

J U D G M E N T

Swatanter Kumar, J.

1.The present appeal is directed against the judgment of the

Calcutta High Court dated 21

st

November, 2006 in exercise of

its criminal appellate jurisdiction vide which the High Court

affirmed the judgment of conviction and the order of sentence

passed by the Trial Court.

2.Before dealing with the rival contentions raised by the

learned counsel appearing for the parties, it is necessary for the

Court to notice the case of the prosecution in brief. On 19

th

1

Page 2 December, 1984, amongst other villagers of village Lauria,

Yamin PW8 and Mohammed Sadak Ali, PW1 hired a pump set of

one Humayun Kabir, who was examined as PW7, for taking

water from the pond known as Baro Lauria Pukur for irrigating

their respective lands. PW8, Yamin and others drew water from

the said pond. In the afternoon, when Mohammed Sadak Ali,

PW1, and his brother, the deceased Samim Ali, went on the

bank of the said tank for drawing water through the said pump,

accused Yanab arrived there. He had an altercation with

Mohammed Sadak Ali and Samim Ali which related to drawing

of water from the tank. Though, PW1 had assured Yanab that

they would stop taking water from the Pukur within a short

time, yet Yanab forcibly switched off the pump machine. This

further aggravated their altercation and accused started

abusing them. Thereafter, accused Yanab suddenly went

running to his house and came back within a few minutes along

with the other accused named Najrul. Yanab then threw a

bomb aiming at Samim Ali which hit him on his chest and

exploded. As a result thereof, Samim fell onto the ground, his

clothes got burnt and he died instantaneously. It is also the

case of the prosecution that Najrul had a cloth bag in his hand

and Yanab took out the bomb from that cloth bag and threw the

2

Page 3 same towards Samim. Immediately after the incident, both the

accused persons fled away. With the help of the villagers,

Mohammed Sadak Ali took Samim to his house which was

stated to be at a short distance from the bank of the tank. The

information with regard to the incident was given to the

Rampurhat Police Station through telephone. SI R.P. Biswas,

PW14, along with SI Samit Chatterjee, PW15, arrived at village

Lauria around 10.00 p.m. on 19

th

December, 1984. The

telephonic information, on the basis of which the G.D. Entry

No.708, Ex.7, was lodged was made by PW6 from a phone

booth. After these officers arrived, PW1, Sadak Ali submitted a

written complaint, Ex.1, addressed to the Officer Incharge of

Rampurhat Police Station. SI, R.P.Biswas, then made an

endorsement, Ex.1/1 and sent the same through Constable

Sunil Dutta to Rampurhat Police Station for starting a case

under Sections 148/149/324/326/302 of the Indian Penal Code

(for short ‘IPC’) and 9(b)(ii) of the Indian Explosives Act. Ex.1

was received at the police station by SI B.Roy. Upon this, a

formal FIR, Ex.1/3, was registered and the investigation was

started by PW14. He prepared the Inquest Report, Ex.2, over

the dead body of the deceased on identification of the same by

his brother, PW2. The sketch map of the place of occurrence,

3

Page 4 Ex.8, was prepared. The pump set was seized vide seizure list

Ex.5 and a Zimma Nama Ex.6 was prepared. PW14 also

collected the post mortem report of the deceased from the Sub-

Divisional Hospital, Rampurhat on 21

st

January, 1985. Because

of transfer of PW14, the investigation of the case was taken up

by SI, N.R. Biswas. Later on the investigation was also

completed by PW15, S. Chatterjee, who had filed the charge

sheet. The accused persons faced the trial for the above-

mentioned offences before the Court of Sessions, which by a

detailed judgment dated 18

th

September, 1992, held them

guilty of the offences and punished the accused Yanab as

follows:

“I, therefore, hold and find accused Yanob not

guilty to the charge under section 324 of the

I.P.C. and he is acquitted of that charge.

As regards the charge under section 9(b)

(ii) of the I.E. Act there is no evidence that

accused Nazrul had in his possession bombs

which were explosives in nature without any

license or permit and as such he is found not

guilty to the said charge and is acquitted.

My findings are that accused Yanob threw

the bomb which exploded on the chest of

Samim causing his instantaneous death and as

such it must be held that Yanob was in

possession of explosive substance without any

license or permit.

4

Page 5 Exts. 9 and 9/1 the reports of the Deputy

Controller of Explosives go to establish that the

remnants of the exploded bomb that was seized

by PW14 and sent to him by C.S. witness NO.23

in sealed packets contained an explosive

mixture of chlorate of potassium and sulphate

of arsenic and such a bomb would be capable of

endangering human life on explosion and it has

been established from the evidence on record

that it has not only endangered human life but

brought a premature end of the life of a human

being and as such I hold and find accused

Yanob guilty to the charge under section 9(b)

(ii) of the I.E. Act and he is convicted

thereunder.

In the result the prosecution case

succeeds in part. Accused Nazrul is found not

guilty to both the charges brought against him

and is acquitted under section 235(1) Cr.P.C.

Accused Yanob Sk is found guilty to the

charge u/s 302 of the I.P.C. and under section

9(b)(ii) of the I.E. Act and is convicted under

both the counts of charges. He is, however,

found not guilty to the charge under section

324 I.P.C. and is acquitted of that charge.

Sd/- P.K. Ghosh,

Addl. Sessions Judge,

Birbhum at Rampurhat,

18

th

September, 1992.

Heard accused Yanob on the point of

sentence. The accused refuses to say anything

or to make any submission on the point of

sentence. Since no lesser than imprisonment

for life can be imposed in an offence under

section 302 I.P.C., the accused Yanob Sk is

sentenced to imprisonment for life for the

conviction under section 302 I.P.C. No separate

sentence is being passed for the conviction

under Section 9(b)(ii) of the I.E. Act.

5

Page 6 Let a copy of this judgment of conviction

and sentence be supplied free of cost to the

convict accused Yanob Sk. as early as possible.

Sd/- P.K. Ghosh,

Addl. Sessions Judge,

Birbhum at Rampurhat,

18

th

September,

1992.”

3.Aggrieved from the above judgment, the convicted

accused, Yanab Sheikh, preferred an appeal before the High

Court which came to be dismissed vide the impugned

judgment, giving rise to the present appeal. While raising a

challenge to the impugned judgment, the learned counsel for

the appellant contended:

1. Ex.1/3 is a second FIR of the occurrence. Ex.7, the G.D.

Entry No. 708, lodged at 2105 hrs. on 19

th

December, 1984

at Police Station Rampurhat by PW6 is, in fact, the FIR.

The second FIR, Ex.1/3, is neither permissible in law and in

fact, is hit by the provisions of Section 162 of the Cr.P.C.

(for short ‘Code’). Thus, the entire case of the prosecution

must fall to the ground.

2.The copy of the FIR was sent to the Court of SDJM after ten

days of the date of occurrence and, therefore, is violative

6

Page 7 of Section 157(1) of the Code, on which account the

appellant would be entitled to a benefit.

3.The prosecution has not examined all the witnesses

without specifying any reason. Therefore, adverse

inference should be drawn against the prosecution. There

are material discrepancies and variations in the

statements of the witnesses. Even the injured witnesses

were not examined. For these reasons, the case of the

prosecution must fail.

4.The acquittal of Najrul by the Trial Court should necessarily

result in acquittal of the present appellant as well, because

without attributing and proving the role of Najrul, the

appellant could not be held guilty of committing any

offence.

5.Lastly, it is contended that the offence squarely falls under

Section 304, Part II of the IPC inasmuch as it was a fight

that took place all of a sudden and resulted in the death of

the deceased. There was no pre-meditation or intent to

murder the deceased.

7

Page 8 4.To the contra, it is contended by the learned counsel

appearing for the State that the accused was convicted on 18

th

September, 1992 in the present case. He was granted bail on

29

th

September, 1992 and was convicted for life in another case

under Sections 302/34 IPC in Case No. 44/1993 by the High

Court. PW1, PW5 and PW6 are the eye-witnesses to the

occurrence and the prosecution has been able to prove its case

beyond any reasonable doubt. The delay in lodging the report

was primarily for the reason that the person had walked to the

post office which was at quite a distance and then made a

phone call to the police station. PW14 had come on the basis of

the call made by PW6. Thus, there was neither unexplained

delay in making the call nor in lodging the FIR. It is also the

contention that Ex.7, the GD Entry is not an FIR but is a mere

intimation without any details and, therefore, the provisions of

Section 162 of the Code are not attracted in the present case.

5.First and foremost, we may examine the question whether

FIR, Ex.1/3, can be treated by the Courts as the First

Information Report and if so, what is the effect of Ex.7 in law,

keeping in view the facts and circumstances of the present

case. It is clearly established on record that the occurrence

8

Page 9 took place in the evening of 19

th

December, 1984. The

occurrence was a result of an altercation and the abuses hurled

at PW1 and the deceased by Yanab near the water tank.

Immediately upon the altercation, the accused had ran to his

house and returned along with Najrul and threw a bomb at the

deceased. PW1, brother of the deceased, PW5, Basera Bibi,

wife of the deceased and PW6 Abdus Sukur, cousin of the

deceased are the eye-witnesses and they said that they had

seen the appellant throwing a bomb upon the deceased and

that the accused, Yanab, had taken the said bomb from the bag

of Najrul.

6.After the incident, PW6 had gone to the Duni Gram Post

Office and informed the police about the incident over the

telephone. He informed the police that there had been a

murder in the village and they should come. When the police

arrived, he was in the village and he met the police at the

house of the deceased Samim. This phone call was taken and

the G.D. Entry was registered by PW14, SI R.P. Biswas.

7.According to PW14, on 19

th

December, 1984 at about the

0805 hours, he had received a telephonic information and noted

the information in General Diary No. 708 and thereafter he had

9

Page 10 proceeded towards village Lauria along with PW15, SI S.

Chaterjee. Ex.7 had been recorded by PW14 and he had

received the written complaint by PW1, Sadek Ali, and the same

was submitted to him after he had reached the village Lauria

and was addressed to the Officer In-charge, Rampurath Police

Station. This written complaint was Ex.1. The cumulative

effect of the statements of PW1, PW6 and PW14 clearly indicate

that Ex.7 was not the First Information Report of the incident. It

gave no details of the commission of the crime as to who had

committed the crime and how the occurrence took place. A

First Information Report normally should give the basic

essentials in relation to the commission of a cognizable offence

upon which the Investigating Officer can immediately start his

investigation in accordance with the provisions of Section 154,

Chapter XII of the Code. In fact, it was only upon reaching the

village Lauria that PW14 got particulars of the incident and

even the names of the persons who had committed the crime.

A written complaint with such basic details was given by PW1

under his signatures to the police officer, who then made

endorsement as Ex.1/1 and registered the FIR as Ex.1/3. In

these circumstances, we are unable to accept the contention

that Ex.7 was, in fact and in law, the First Information Report

10

Page 11 and that Ex.1/3 was a second FIR for the same

incident/occurrence which was not permissible and was

opposed to the provisions of the Section 162 of the Code.

8.In the case of Manu Sharma v. State (NCT of Delhi)

(2010) 6 SCC 1, a Bench of this Court took the view that cryptic

telephone messages could not be treated as FIRs as their object

is only to get the police to the scene of offence and not to

register the FIR. The said intention can also be clearly culled

out from the bare reading of Section 154 of the Code which

states that the information if given orally should be reduced to

writing, read over to the informant, signed by the informant and

a copy of the same be given to him, free of cost. Similar view

was also expressed by a Bench of this Court in the case of State

of Andhra Pradesh v. V.V. Panduranga Rao (2009) 15 SCC 211,

where the Court observed as under: -

“10. Certain facts have been rightly noted by

the High Court. Where the information is only

one which required the police to move to the

place of occurrence and as a matter of fact

the detailed statement was recorded after

going to the place of occurrence, the said

statement is to be treated as FIR. But where

some cryptic or anonymous oral message

which did not in terms clearly specify a

cognizable offence cannot be treated as FIR.

The mere fact that the information was the

11

Page 12 first in point of time does not by itself clothe it

with the character of FIR. The matter has to

be considered in the background of Sections

154 and 162 of the Code of Criminal

Procedure, 1973 (in short “the Code”). A

cryptic telephonic message of a cognizable

offence received by the police agency would

not constitute an FIR.”

9.Thus, the purpose of telephone call by PW6, when

admittedly he gave no details, leading to the recording of Entry,

Ex.7, would not constitute the First Information Report as

contemplated under Section 154 of the Code. The reliance

placed by the learned counsel appearing for the appellant upon

the provisions of Section 162 of the Code, is thus, not well-

founded. Even in the case of Ravishwar Manjhi & Ors. v. State

of Jharkhand, (2008) 16 SCC 561, another Bench of this Court

took the view that “..we are not oblivious to the fact that a mere

information received by a police officer without any details as

regards the identity of the accused or the nature of the injuries

caused to the victim, name of the culprits, may not be treated

as FIR, but had the same been produced, the nature of the

information received by the police officer would have been

clear.....”

10.On this principle of law, we have no hesitation in stating

that the second FIR about the same occurrence between the

12

Page 13 same persons and with similarity of scope of investigation,

cannot be registered and by applying the test of similarity, it

may then be hit by the proviso to Section 162 of the Code.

11.In the case of Anju Chaudhary v. State of U.P. & Anr.

[Criminal Appeal @ SLP(Crl.) No. 9475 of 2008 decided on the

6

th

December, 2012], this Court held :

“13.Section 154 of the Code requires that

every information relating to the commission of

a cognizable offence, whether given orally or

otherwise to the officer in-charge of a police

station, has to be reduced into writing by or

under the direction of such officer and shall be

signed by the person giving such information.

The substance thereof shall be entered in a

book to be kept by such officer in such form as

may be prescribed by the State Government in

this behalf.

14.A copy of the information 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

13

Page 14 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 any

person other than a police officer, or upon his

own knowledge, that such offence has been

committed.

15.On the plain construction of the language

and scheme of Sections 154, 156 and 190 of

the Code, it cannot be construed or suggested

that there can be more than one FIR about an

occurrence. However, the opening words of

Section 154 suggest that every information

relating to commission of a cognizable offence

shall 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 doubt

jeopardy, rule of fair investigation and further to

14

Page 15 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

determinative right. It is only a right to

investigate in accordance with the provisions of

the Code. The filing of report upon completion

of investigation, either for cancellation or

alleging commission of an offence, is a matter

which once filed before the court of competent

jurisdiction attains a kind of finality as far as

police is concerned, may be in a given case,

subject to the right of further investigation but

wherever the investigation has been completed

and a person is found to be prima facie guilty of

committing an offence or otherwise,

reexamination by the investigating agency on

its own should not be permitted merely by

registering another FIR with regard to the same

offence. If such protection is not given to a

suspect, then possibility of abuse of

investigating 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

15

Page 16 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

depending upon the merits of a given case. In

the case of Ram Lal Narang v. State (Delhi

Administration) [(1979) 2 SCC 322], the Court

was concerned with the registration of a second

FIR in relation to the same facts but constituting

different offences and where ambit and scope

of the investigation was entirely different.

Firstly, an FIR was registered and even the

charge-sheet filed was primarily concerned with

the offence 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 observed that there

was a statutory duty upon the Police to register

16

Page 17 every information relating to cognizable offence

and the second FIR was not hit by the principle

that it is impermissible to register a second FIR

of the same offence. The Court held as under :

“20.Anyone acquainted with the day-to-

day working of the criminal courts will be

alive to the practical necessity of the

police possessing the power to make

further investigation and submit a

supplemental report. It is in the interests

of both the prosecution and the defence

that the police should have such power. It

is easy to visualize a case where fresh

material may come to light which would

implicate persons not previously accused

or absolve persons already accused. When

it comes to the notice of 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

17

Page 18 previously taken cognizance has already

proceeded to some extent, he may take

fresh cognizance of the offence disclosed

against the newly involved accused and

proceed with the case as a separate case.

What action a Magistrate is to take in

accordance with the provisions of the CrPC

in such situations is a matter best left to

the discretion of the Magistrate. The

criticism that a further investigation by the

police would trench upon the proceeding

before the court is really not of very great

substance, since whatever the police may

do, the final discretion in regard to further

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

18

Page 19 Section 173 nor Section 190 lead us to

hold that the power of the police to further

investigate was exhausted by the

Magistrate taking cognizance of the

offence. Practice, convenience and

preponderance of authority, permitted

repeated investigations on discovery of

fresh facts. In our view, notwithstanding

that a Magistrate had taken cognizance of

the offence upon a police report submitted

under Section 173 of the 1898 Code, the

right of the police to further investigate

was not exhausted and the police could

exercise such right as often as necessary

when fresh information came to light.

Where the police desired to make a further

investigation, the police could express

their regard and respect for the court by

seeking its formal permission to make

further investigation.

22. As in the present case, occasions may

arise 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

19

Page 20 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 Delhi Court

against Mehra and others and, therefore, it

was not necessary to prosecute Mehra in

the Ambala court. The Court granted its

permission for the withdrawal of the case.

Though the investigating agency would

have done better if it had informed the

Ambala Magistrate and sought his formal

permission for the second investigation,

we are satisfied that the investigating

agency did not act out of any malice. We

are also satisfied that there 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 1

st

August, 1978 to

25

th

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)

20

Page 21 of Section 154 of the Code is commonly known

as the First Information Report (FIR). Though

this term is not used in the Court, it is a very

important document. The Court concluded that

second FIR for the same offence or occurrence

giving rise to one or more cognizable offences

was not permissible. In this case, the Court

discussed the judgments in Ram Lal Narang

(supra) and M. Krishna (supra) in some detail,

and while quashing the subsequent FIR held as

under :

“23. 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

CrPC. In Emperor v. Khwaja Nazir Ahmad

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.”

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

21

Page 22 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 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 Crimes Nos. 353 and 354 of

1994 for making further investigations and

filing a further report or reports under

Section 173(8) CrPC 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 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)

22

Page 23 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-complaint by the

accused in the first complaint or on

his behalf alleging a different version

of the said incident.

18. This Court in Kari Choudhary v.

Sita Devi discussing this aspect of law

held:

“11. Learned counsel adopted

an alternative contention that

once the proceedings initiated

under FIR No. 135 ended in a

final report the police had no

authority to register a second

FIR and number it as FIR No.

208. Of course the legal position

is that there cannot be two FIRs

against the same accused in

23

Page 24 respect of the same case. But

when there are rival versions in

respect of the same episode,

they would normally take the

shape of two different FIRs and

investigation can be carried on

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

24

Page 25 a false complaint and the same is

registered by the jurisdictional police

then the aggrieved victim of such

crime will be precluded from lodging

a complaint giving his version of the

incident in question, consequently he

will be deprived of his legitimated

right to bring the real accused to

book. This cannot be the purport of

the Code.

24. We have already noticed that in

T.T. Antony case this Court did not

consider the legal right of an

aggrieved person to file counterclaim,

on the contrary from the observations

found in the said judgment it clearly

indicates that filing a counter-

complaint is 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

25

Page 26 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

has been filed against the petitioner in respect

of other allegations filed against the petitioner.

21.This Court also had the occasion to deal

with the situation where the first FIR was a

cryptic one and later on, upon receipt of a

proper information, another FIR came to be

recorded which was a detailed one. In this

case, the court took the view that no exception

could be taken to the same being treated as an

FIR. In the case of Vikram v. State of

Maharashtra (2007) 12 SCC 332, the Court held

that it was not impermissible in law to treat the

subsequent information report as the First

Information Report and act thereupon. In the

case of Tapinder Singh v. State of 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

26

Page 27 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

complaint or the complete facts could not

be placed before the court or where the

complainant came to know certain facts

after disposal of the first complaint which

could have tilted the balance in his favour.

However, the second complaint would not

be maintainable wherein the earlier

complaint has been disposed of on full

consideration of the case of the

complainant on merit.”

23.The First Information Report is a very

important document, besides that it sets the

machinery of criminal law in motion. It is a

very material document 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

27

Page 28 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 is

different and they are in respect of two different

incidents/crimes, the second FIR is permissible,

This is the view expressed by this Court

expressed in the case of Babu Babubhai v.

State of Gujarat and Ors. [(2010) 12 SCC 254].

This judgment clearly spells out the distinction

between two FIRs relating to the same incident

and two FIRs relating to different incident or

occurrences of the same incident etc.

24.To illustrate such a situation, one can give

an example of the same group of people

committing theft in a similar manner in different

localities falling under different jurisdictions.

Even if the incidents were committed in close

proximity of time, there could 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

28

Page 29 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.”

12.In light of the above settled principle, we are unable to

accept that Ex.1/3 was a second FIR with regard to the same

occurrence with similar details and was hit by Section 162 of

the Code. On the contrary, Ex.7 was not a First Information

Report upon its proper construction in law but was a mere

telephonic information inviting the police to the place of

occurrence. Thus, we have no hesitation in rejecting this

contention raised on behalf of the appellant.

13.Equally without merit is the contention that the case of the

prosecution must fail as the copy of the FIR had been sent to

the Court after ten days of the registration of the FIR. The

learned counsel appearing for the appellant stated that the FIR

was registered on 19

th

December, 1984 but was sent to the

Court of the Magistrate on 29

th

December, 1984. He pointed out

the Entry No.793/1984 in this regard. The said G.R. Entry is not

the entry sending the First Information Report to the Court. The

document shown by the learned counsel for the appellant is

neither the copy of the FIR nor does it contain any

29

Page 30 acknowledgment of the Court. It is merely a note of the case

proceedings as to what steps have been taken by the

Investigating Officer and was signed by the Investigating Officer

on 19

th

December, 1984 itself. The learned counsel appearing

for the appellant has not pointed out any other document from

the record which could substantiate this contention raised on

behalf of the appellant. The argument is entirely misconceived

and is not based on any record of the case and is thus, rejected.

14.The next contention raised on behalf of the appellant that

we are to deal with is that the prosecution should have

examined all witnesses without exception. The fact that the

prosecution failed to examine PW8, PW9 and PW10 itself

renders the prosecution story feeble. It is correct that in the

present case, PW8, PW9 and PW10 were produced as witnesses

before the Court. After recording their introductory part in the

examination-in-chief, the prosecution gave up these witnesses

as having been won over and tendered them for cross-

examination. The Court in its order dated 3

rd

July, 1992

recorded this aspect and also mentioned that the witnesses

have been cross-examined by the defence. In view of this

position, it cannot be said that the defence of the accused has

30

Page 31 suffered any prejudice as a result of non-examination of these

three witnesses.

15.It is interesting to note that PW8, Yamin in his cross-

examination admitted that he was examined by the

Investigating Officer and also that he had stated before the

daroga babu (Investigation Officer) that on the date of the

incident, since morning he was drawing water from Baro Lauria

Pukur through a pump set taken on hire from Humayon Kabir,

PW7. No further questions were put to this witness by the

accused. Whatever he stated in his cross-examination, to some

extent, supports the case of the prosecution. It proves that the

incident occurred on that day, pump was taken on hire and

people of the village during the day were drawing water from

the Baro Lauria Pukur. It is, thus, clear that non-examination of

these witnesses has neither prejudiced the case of the

prosecution nor will it be of any serious advantage to the

accused. For this purpose, reliance has been placed upon the

judgment of this Court in the case of Masalti v. State of U.P.

[AIR 1965 SC 202] where the Court held that it is undoubtedly

the duty of the prosecution to lay before the Court all material

evidence available which is necessary for unfolding its case.

31

Page 32 16.In the case of Masalti (supra), the judgment relied upon by

the learned counsel for the appellant, this Court while making it

clear that duty lies upon the prosecution to examine all material

witnesses clearly stated the situation where the witnesses may

not be examined because they have been won over, terrorised

and they may not speak the truth before the court. The court in

paragraph 12 held as under:

“12. In the present case, however, we are

satisfied that there is no substance in the

contention which Mr Sawhney seeks to raise

before us. It is not unknown that where serious

offences like the present are committed and a

large number of accused persons are tried,

attempts are made either to terrorise or win

over prosecution witnesses, and if the

prosecutor honestly and bona fide believes that

some of his witnesses have been won over, it

would be unreasonable to insist that he must

tender such witnesses before the court. It is

undoubtedly the duty of the prosecution to lay

before the court all material evidence available

to it which is necessary for unfolding its case;

but it would be unsound to lay down as a

general rule that every witness must be

examined even though his evidence may not be

very material or even if it is known that he has

been won over or terrorised. In such a case, it is

always open to the defence to examine such

witnesses as their witnesses and the court can

also call such witnesses in the box in the

interest of justice under Section 540 CrPC. As

we have already seen, the defence did not

examine these witnesses and the Court, after

due deliberation, refused to exercise its power

32

Page 33 under Section 540 CrPC. That is one aspect of

the matter which we have to take into account.”

17.Basruddin, admittedly was not produced before the Court.

The defence also did not summon this witness. Even if for the

sake of arguments, it is assumed that Basruddin, if produced

would have spoken the truth, that necessarily does not imply

that he would not have supported the case of the prosecution.

Even if we give some advantage to the case of the defence, for

the reason that this witness has not been produced, even then

by virtue of the statement of three other witnesses, PW1, PW5

and PW6, attendant circumstances and the statement of PW14,

the prosecution has been able to bring home the guilt of the

accused.

18.We must notice at this stage that it is not always the

quantity but the quality of the prosecution evidence that weighs

with the Court in determining the guilt of the accused or

otherwise. The prosecution is under the responsibility of

bringing its case beyond reasonable doubt and cannot escape

that responsibility. In order to prove its case beyond reasonable

doubt, the evidence produced by the prosecution has to be

qualitative and may not be quantitative in nature. In the case

33

Page 34 of Namdeo v. State of Maharashtra [(2007) 14 SCC 150], the

Court held as under:

“28. From the aforesaid discussion, it is clear that

Indian legal system does not insist on plurality of

witnesses. Neither the legislature (Section 134 of

the Evidence Act, 1872) nor the judiciary

mandates that there must be particular number

of witnesses to record an order of conviction

against the accused. Our legal system has always

laid emphasis on value, weight and quality of

evidence rather than on quantity, multiplicity or

plurality of witnesses. It is, therefore, open to a

competent court to fully and completely rely on a

solitary witness and record conviction.

Conversely, it may acquit the accused in spite of

testimony of several witnesses if it is not satisfied

about the quality of evidence. The bald contention

that no conviction can be recorded in case of a

solitary eyewitness, therefore, has no force and

must be negatived.”

19.Similarly, in the case of Bipin Kumar Mondal v. State of

West Bengal (2010) 12 SCC 91, this Court took the view, “..in

fact, it is not the number and quantity but the quality that is

material. The time-honoured principle is that evidence has to

be weighed and not counted. The test is whether evidence has

a ring of truth, is cogent, trustworthy and reliable.”

20.Facts of the present case, seen in light of the above

principles, makes it clear that the Court is primarily concerned

and has to satisfy itself with regard to the evidence being

34

Page 35 reliable, trustworthy and of a definite evidentiary value in

accordance with law. PW1, PW5 and PW6 have clearly

supported the case of the prosecution. Their statements,

examined in conjunction with the statement of PW11, the

doctor and the Investigating Officer, PW14, clearly establish the

case of the prosecution beyond any reasonable doubt.

21.Najrul has been acquitted by the Trial Court. His acquittal

was not challenged by the State before the High Court. In other

words, the acquittal of Najrul has attained finality. While

recording the acquittal of the accused Najrul, the Trial Court

recorded the following reasoning:

“P.W.1 and PW-5 at the first blush did not

say that accused Yanob threw the bomb at

Samim taking the same from the bag of Nazrul

and PW-1 stated that Yanob came along with

Nazrul with bomb in his hand. He did not say

that Nazrul was carrying any cloth bag (Tholey).

It also transpired from the evidence of PW-5

that the house of Yanob is about 200/250 cubits

away from the bank of the tank while that of

Nazrul is at a further distance of 25/30 cubits

from Yanob’s house.

It might be that Nazrul was in the house of

Yanob or hearing shouts from the bank of the

tank seeing Yanob rushing back towards the

bank of the tank with bombs in his hand he came

close behind him to see what was going on and

at that point of time he might have a had a cloth

35

Page 36 bag in his hand but that itself will not prove that

he shared the common intention with Yanob to

kill Samim specially when no such cloth bag

containing bombs were recovered from his

possession.

I, therefore, on an appreciation of the entire

evidence on record feel no hesitation to hold and

find accused Yanob guilty to the charge under

section 302 I.P.C. and convict him thereunder

and hold and find accused Nazrul not guilty to

the charge under section 302 read with section

34 of the Indian Penal Code and he is acquitted

of that charge under section 235(1) Cr.P.C. So

far as the charge under section 324 I.P.C. against

accused Yanob for causing voluntary hurt to

Mahasin (PW-9) and Basir (C.S. witness No. 10) is

concerned there is no evidence that the

aforesaid persons sustained and/or received any

injury from the splinters of the exploded bomb

thrown by accused Yanob. Nahasin when

tendered by the prosecution even during cross

examination did not say that he sustained any

such injury. Basir as already observed had not

been examined on the plea that he has been

gained over and the defence did not examine

him as its witness to prove that the prosecution

narrative was not correct and the incident took

place in a different manner.

I, therefore, hold and find accused Yanob

not guilty to the charge under section 324 of the

I.P.C. and he is acquitted of that charge.”

22.In the present case, we are concerned with the merit or

otherwise of the above reasoning leading to the acquittal of the

accused Najrul. We are primarily concerned with the effect of

this acquittal upon the case of the appellant-accused. The Trial

36

Page 37 Court in its judgment clearly stated that there was direct and

circumstantial evidence against the accused implicating him

with the commission of the crime. Finding the appellant guilty

of the offence, the Trial Court punished him accordingly. Where

the prosecution is able to establish the guilt of the accused by

cogent, reliable and trustworthy evidence, mere acquittal of one

accused would not automatically lead to acquittal of another

accused. It is only where the entire case of the prosecution

suffers from infirmities, discrepancies and where the

prosecution is not able to establish its case, the acquittal of the

co-accused would be of some relevancy for deciding the case of

the other. In the case of Dalbir Singh v. State of Haryana

[(2008) 11 SCC 425], this Court held as under:

“13. Coming to the applicability of the principle

of falsus in uno, falsus in omnibus, even if major

portion of evidence is found to be deficient, residue

is sufficient to prove guilt of an accused,

notwithstanding acquittal of large number of other

co-accused persons, his conviction can be

maintained. However, where large number of other

persons are accused, the court has to carefully

screen the evidence:

“51. … It is the duty of court to separate grain

from chaff. Where chaff can be separated from

grain, it would be open to the court to convict an

accused notwithstanding the fact that evidence

has been found to be deficient to prove guilt of

other accused persons. Falsity of particular

37

Page 38 material witness or material particular would not

ruin it from the beginning to end. The maxim

falsus in uno, falsus in omnibus has no

application in India and the witnesses cannot be

branded as liars. The maxim falsus in uno, falsus

in omnibus (false in one thing, false in

everything) has not received general

acceptance in different jurisdiction in India, nor

has this maxim come to occupy the status of

rule of law. It is merely a rule of caution. All that

it amounts to, is that in such cases testimony

may be disregarded, and not that it must be

disregarded. The doctrine merely involves the

question of weight of evidence which a court

may apply in a given set of circumstances, but it

is not what may be called ‘a mandatory rule of

evidence’. (See Nisar Ali v. State of U.P.) Merely

because some of the accused persons have

been acquitted, though evidence against all of

them, so far as direct testimony went, was the

same does not lead as a necessary corollary

that those who have been convicted must also

be acquitted. It is always open to a court to

differentiate the accused who had been

acquitted from those who were convicted. (See

Gurcharan Singh v. State of Punjab.) The

doctrine is a dangerous one, specially in India,

for if a whole body of the testimony were to be

rejected, because witness was evidently

speaking an untruth in some aspect, it is to be

feared that administration of criminal justice

would come to a dead stop. Witnesses just

cannot help in giving embroidery to a story,

however, true in the main. Therefore, it has to

be appraised in each case as to what extent the

evidence is worthy of acceptance, and merely

because in some respects the court considers

the same to be insufficient for placing reliance

on the testimony of a witness, it does not

necessarily follow as a matter of law that it must

be disregarded in all respects as well. The

evidence has to be sifted with care. The

aforesaid dictum is not a sound rule for the

38

Page 39 reason that one hardly comes across a witness

whose evidence does not contain a grain of

untruth or at any rate exaggeration,

embroideries or embellishment. (See Sohrab v.

State of M.P.

4

and Ugar Ahir v. State of Bihar.)

An attempt has to be made to in terms of

felicitous metaphor, separate grain from the

chaff, truth from falsehood. Where it is not

feasible to separate truth from falsehood,

because grain and chaff are inextricably mixed

up, and in the process of separation an

absolutely new case has to be reconstructed by

divorcing essential details presented by the

prosecution completely from the context and

the background against which they are made,

the only available course to be made is discard

the evidence in toto. (See Zwinglee Ariel v.

State of M.P. and Balaka Singh v. State of

Punjab.) As observed by this Court in State of

Rajasthan v. Kalki

8

normal discrepancies in

evidence are those which are due to normal

errors of observations, normal errors of memory

due to lapse of time, due to mental disposition

such as shock and horror at the time of

occurrence and these are always there however

honest and truthful a witness may be. Material

discrepancies are those which are not normal

and not expected of a normal person. Courts

have to label the category to which a

discrepancy may be categorised. While normal

discrepancies do not corrode the credibility of a

party's case, material discrepancies do so.”

23.The cumulative effect of the above discussion is that the

acquittal of a co-accused per se is not sufficient to result in

acquittal of the other accused. The Court has to screen the

entire evidence and does not extend the threat of falsity to

39

Page 40 universal acquittal. The Court must examine the entire

prosecution evidence in its correct perspective before it can

conclude the effect of acquittal of one accused on the other in

the facts and circumstances of a given case.

24.Neither we are able to see nor the counsel appearing for

the appellant has been able to point out the contradictions or

discrepancies of any material nature in the statements of the

witnesses. PW6, cousin of the deceased has supported the

prosecution version. His statement is duly corroborated by

other witnesses. According to him he had gone to the Duni

Gram Post Office and informed the police about the incident

over telephone, in response to which PW14 had come to the

place of occurrence. The incident took place at about 4.00 to

4.30 p.m. The telephonic information was given at about 9.00

p.m. and thereafter the FIR, Ex.1/3, was registered at about

10.00 p.m. The question of delay in lodging the FIR in the

present case does not arise. Whatever time was taken in

registering the FIR stands fully explained by the statements of

PW6 and PW14.

25.Another very important aspect of the case is, that on

behalf of the accused, no question or suggestions were put to

40

Page 41 the Investigating Officer on any of these aspects which are

sought to be raised before us in the present appeal. The

Investigating Officer could have easily explained the delay, if

any. No question was also directed to get an explanation on

record as to why Basruddin was not examined and PW9 and

PW10 without examination were tendered for cross-examination

in Court. Absence of such questions on behalf of the accused

to the concerned witnesses would show that the accused

cannot claim any advantage and thus, cannot default the case

of the prosecution in this regard, particularly in the facts of the

present case.

26.For the reasons afore-stated, we find no merit in the

present appeal. The same is dismissed accordingly.

.…................................J.

[Swatanter Kumar]

.…................................J.

[Madan B. Lokur]

New Delhi;

December 13, 2012

41