§ COLD CALL
§ TELEPHONIC FIR
§ MULTIPLE FIR/SECOND FIR
OUTLINE § ANJU CHAUDHERY V STATE OF U.P.
§ T.T. ANTONY V STATE OF KERELA
§ YANAB SHEIKH CASE
LALITA KUMARI V. GOVERNMENT OF UP
FACTS
§ This petition has been filed by Lalita Kumari by her father
Shri Bhola Kant for the issuance of writ of Habeas Corpus for
protection of the minor daughter who has been kidnapped.
§ The grievance in the said petition is that on 11.05.2008 a
written report was submitted by the petitioner before the
officer in charge of the police station concerned who did not
take any action on the same. Thereafter when the
Superintendent of Police was moved, an FIR was registered.
§ Even thereafter, steps were not taken either for apprehending
the accused or for recovery of the minor girl child.
§ A two-judge bench in 2008 after noticing the disparity in
registration of FIR by police officers on case-to-case basis
across the country, issued notice to the Union of India, the
chief secretaries of all the states and union territories and
Director Generals of Police commissioners of police to the
effect that if the steps are not taken for registration of FIR
immediately and the copies are not handed over to the
complainants they may move to the magistrate.
§ Contempt proceedings must be initiated against such police
officer if no sufficient cause is shown.
§ Reliance was placed on Bhajanlal case for registering FIR on
receipt of information of a cognizable offence.
§ Case in 2008 was referred to a larger Bench in 2012- after
adverting to all the conflicting decisions extensively. The
case was refereed to the constitution bench for a better
interpretation of section 154.
ISSUE
§ Whether a police officer is bound to register a FIR upon
receiving any information relating to commission of a
cognizable offence under section 154 of the code.
§ OR the police officer has the power to conduct a preliminary
inquiry in order to test the veracity of such information
before registering it.
Arguments for no preliminary inquiry before
FIR
§ Argued by senior counsel S.B. Upadhayay- Section 154 (1) is
mandatory as the use of word “shall” is indicative of the
statutory intent of the legislature. There is no discretion left to
the police.
§ It merely mentions information without prefixing the words
reasonable or credible.
§ Mr. K.V Vishwanathan learned additional solicitor Gerenal
submitted that in all cases where information is received
under section 154 is mandatory for the police to enter it if it is
related to the cognizable offence.
§ In case of cryptic information also, on gathering that
information is related to the cognizable offence, the police
officer must send the report to the police station so that it
may be recorded as an FIR
§ It was concluded that when the statutory provisions are clear
and unambiguous, it would not be legally permissible to
allow the police to make a preliminary inquiry into the
allegation before registering an FIR under section 154
§ At the stage of registration of a crime on the basis of the information
disclosing the cognizable offence in compliance with the mandate of
section 154(1) of the code, the concerned police officer cannot
embark upon an inquiry as to weather the information is reliable and
genuine or otherwise refuse to register a case on the ground that
information is not reliable or credible.
§ A comparison was drawn between section 154(1) and section 41(1)(a)
or (g) where the expression ‘reasonable complaint’ and ‘credible
information’ are used. Evidently, the use of such terms in section 41
suggest that police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with
reasonableness or credibility of the information.
Arguments from the respondent- Police must
be preliminary inquiry
§ Mr. Siddharth Luthra, then learned Additional Solicitor General
contended that preliminary inquiry should be held permissible
before registering of an FIR. Power to carry out an inquiry or
preliminary inquiry by the police, which precedes the
registration of FIR will eliminate the misuse of process, as the
registration of FIR serves as an impediment against a person for
various important activities like applying for a job or a passport
etc.
§ He requested to make guidelines for certain category of cases in
which preliminary inquiry should be made.
§ Same contention was from Mr. Shekhar Naphde, senior counsel.
In certain cases, police officer must have option of conducting an
preliminary inquiry.
§ Mandatory registration of FIR will lead to arbitrary arrest
which will be directly be in contravention of Article 21 of the
constitution.
Significance and compelling reasons for
registering FIR at the earliest
§ 1- the criminal process is set into motion and is well
documented from very start.
§ 2- the earliest information received in relation to the
commission of a cognizable offence is recorded so that there
cannot be any embellishment.
Dr. Justice V.S. Malimath committee
recommended:-
§ 1- all complaints should be registered promptly, failing which
appropriate action should be taken.
§ 2- this would minimize the offence by the police by the way
of not invoking appropriate sections of law.
Judgment
§ Registration of FIR is mandatory under section 154 of the
code, if the information discloses cognizable offence.
§ If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted ONLY TO ASCERTAIN
WHETHER COGNIZABLE OFFENCE IS DISCLOSED OR NOT
Exceptions to this rule:-
§ 1.Matrimonial disputes/ family disputes
§ 2. Commercial Offences
§ 3.Medical Negligence case
§ 4. Corruption Cases
§ Preliminary inquiry should be made time bound and should
not exceed 7 days.
F.I.R
Telephonic F.I.R
Anju Chaudhery v. State of U.P.
§ Facts:
Parvez Khan, a social activist filed an application in the court of
Judicial Magistrate, Gorakhpur
He complaint one Mahant Aditya Yogi Nath is spreading hatred
amongst Hindu and Muslims.
They did meet and gave warning to all the Muslims.
Some shops were set on Fire
FIR was lodged by Md. Isa Ansari, according to him some
unknown person claiming to be from Hindu Yuva Vahini had set
the shop on fire.
§ Parvez complaint almost after 10 months. He had some names
in his applications.
§ The CJM said there is already one FIR and investigation is
under process so there is no need for another FIR and
rejected the application.
§ Aggrieved by this Parvez filed revision petition in HC. The HC
set aside the judgment of Magistrate and ordered that
Magistrate should have asked to file FIR against the accused
since the matter is too serious.
§ It was found that both the FIRs differ. One was related to the
damage by fire to the shop. Second FIR contains different
incidents with name of people in it.
The appeal in SC
§ Anju Chaudhary challenged the order of HC in following
grounds:
1. The order passed by CJM did not suffer from any error of
Jurisdiction.
2. Order of HC for second FIR is not sustainable. In law there
cannot be two FIR registered in relation to the same
occurrence or different events or incidents two or more but
forming same transaction.
ISSUE
§ Whether there can be more than one FIR in relation to same
incident or different incidents arising out of the same
occurrence?
Supreme Court held:
§ It was contended by the state that they were not two FIR of
one incident, but FIR related to two different incident which is
permissible in law.
§ Where the incident is separate; offences are similar or
different or even where subsequent crime is of such
magnitude that it does not fall within the ambit and scope of
FIR first recorded first, then second FIR can be registered.
§ It has to be examined on the basis of each case that the FIR is
about the same incident or different offence based on facts of
the case.
§ The complaint made was of general nature and included
various communal riots. Thus, it related to different case.
§ “we do not find any error in the order of HC requiring the
learned Magistrate to deal with the case afresh and pass on
order. It is true that there cannot be any straight jacket
formula and it depends on case-to-case basis”
T. T ANTONY V. STATE OF KERELAT. T.T.
ANTONY V. STATE OF KERELA
ANTONY V. STATE OF KERELA
FACTS
T.T. ANTONY V. STATE OF KERELA
§ Communist party of India is said to have a strong hold in
Kannur, Kerela.
T.T. ANTONY V. STATE OF KERELA
§ Mr. M.V. Raghvan who was once in CPI(M) and was MLA for
15 years broke away from that party and formed a new party-
the Communist Marxist Party (CMP)
§ He was elected as an MLA.
§ CMP became a constituent of United Democratic Front (UDF)
which formed government and was in power during that
period.
§ Mr. MV Raghavan was a minister in UDF government. This
gave rise in retribution in rank and file of CPI(M) particularly
in its youth wing DYFI which prevent his visits in Kannur.
§ In January 1993, during his visit in Kanuur a few country
made bomb were hurled on him.
§ In view of this, the then government ordered security
arrangements for his visit in Kannur.
§ Against the advice, he went to Kannur in an inauguration.
Police firing happened and 5 people died, and 6 people
suffered injuries in lathi charge, and few police personnel
were injured.
§ Police opened fire at two places 1) in proximity of town hall
on the order of magistrate. 2) in the vicinity of police station
on orders of superintendent of police.
§ Town hall- assistant superintendent of police registered F.I.R
against 8 named and many other unidentified persons
belonging to CPI(M) including the president of DYFI
§ Police station vicinity- SP lodged FIR against unidentifiable
person of CPI(M) for forming unlawful assembly.
§ The incident gave rise to public uproar and demanded
Judicial Inquiry. The then Government of UDF appointed
District and session Judge as commission of Inquiry under
section 3(1) of Commission of Inquiry Act.
Questions Infront of the commission
1. The circumstances which led to firing
2. Whether said firing was justified
3. The person responsible for firing
4. Any incidental matter arising out of the above.
§ In 1996 assembly elections the government in state of Kerala
changed. UDF lost to LDF which was headed by CPI(M)
§ IN 1997 COMMISSION SUBMITTED ITS REPORT-
§ The uncompromising attitude of Mr. M.V Raghavan to attend
the inaugural function was the root cause for firing.
§ The lathi charge ignited the event
§ Police firing was not justified
§ Held M.V Raghavn, Abdul Hakkim Dy S.P Kannur and T.T
Antony former Dy. Collector Kannur responsible for police
firing
§ The report of the commission was accepted by the
government.
§ The additional chief secretary to the government of Kerala,
while enclosing a copy of report wrote to Director General of
Police that legal action is to be taken.
§ DGP orders the Inspector General and he orders to SHO to
register a case and forward the copy of FIR to Deputy
Inspector General of Police for investigation.
§ On this information Deputy Superintendent of Police,
Kuthuparamba registered a FIR under section 302
§ The Deputy Inspector General of Police who investigated the
case filed report in Judicial Magistrate of First Class
§ Three writ were filed in the high court by TT ANTONY, ASP,
and 14 constables to quash the FIR and ask for an
investigation by CBI.
§ HC ordered re-investigation in case by CBI instead of
quashing FIR.
§ 6 Writ appeal were filed in division bench of HC 3 by writ
petitioners and 3 by the state.
§ The division Bench ordered re-investigation by 3 senior
police officers including one named in writ.
§ Dissatisfied by division Bench the appellant move to the SC
§ Learned senior counsel for T.T Antony said- he was just doing
his duty.
§ ISSUES TO FOCUS
1. LEGALITY OF THE SECOND FIR.
It was argued that registration of fresh FIR in respect of the
same incident is not valid and therefore liable to be quashed.
The arguments was countered by the Solicitor General saying
that:
No legality is attached to the second FIR or the investigation
made thereunder as nothing prevent any investigating agency
from making further investigation on the basis of first FIR
§ Report can be sent to the magistrate. If further investigation
require, it can be done with the permission of the court, can
send more reports. No second FIR
§ Registering second FIR and making fresh investigation and
forwarding the report to the magistrate would be irregular
and court cannot take cognizance on the same.
SITUATION 1
§ A and M hired a pump set of one H for taking water from the pond for irrigating their respective
lands.
§ In the afternoon, when M and his brother S (deceased) went on the bank of the said tank for
drawing water through said pump accused Y arrived.
§ Accused had an altercation with M and S which related to drawing of water from the tank.
§ M assured Y that they would stop taking water from the tank in very short time. Yet, Y forcibly
switched off the pump machine.
§ This further aggravated their altercation and accused started abusing them.
§ Thereafter, Y suddenly went running to his house and came back within a few minutes along with
other accused N.
§ Y then threw a bomb aiming at S which hit him on his chest, and he dies on the spot.
§ Immediately after the incident, both accused person fled away.
§ The information related to the murder was given through
telephone to the police station.
§ After the information provided on the telephone officers
arrived at a place and written complaint was lodged by M.
§ Issue before the court was on the legality of the second F.I.R.
DECIDE??
Yanab Sheikh @gagu
v. State of West
Bengal 2013
