# Mohd. Yusuf Khan v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-27
- **Case number:** Application U/S 482 Cr.P.C. No. 8355 of 2009
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-yusuf-khan-v-state-of-u-p-anr-45281
- **Pages:** 14

## Headnote

A.G.A.

A. First Information Report
- after
registration
of
the
FIR
and
commencement
of
investigation,
a
second FIR relating to the same incident
was lodged - the test of sameness is to be
applied to ascertain whether both the
FIRs relate to the same incident in
respect of the same occurrence or are in
regard to the incidents which are two or
more parts of the same transaction - in
case the answer is in affirmative, the
second FIR is liable to be quashed.

Both the first information reports have been
lodged against the same accused i.e., applicant
by the two officers of the same department.
Though the complainant/informant of both the
aforesaid FIRs is different person, both the
complainant/informant
have
lodged
their
respective FIRs in their official capacity on
behalf of the same department and not in their
personal capacity. (Para 29)

After reading the aforesaid facts and after
applying the principle of sameness, it is
explicitly clear that the second FIR is cryptic
and does not stand the test laid down by the
Apex Court. (Para 31)

Application u/s 482 allowed. (E-10)

List of cases cited: -

## Text

_Characters 0–39,880 of 46,918. This is a partial read: ask again with offset=39880 for what follows._

1 All. Smt. Mahadevi & Ors. Vs. State of U.P. & Anr.
1637
were clear allegations of fraud and
cheating which prima facie constitute
offences under Section 420 of the Indian
Penal Code. The correctness of the
allegations can be adjudged only at the
trial when evidence is adduced. At this
stage, it was not for the High Court to
enter into factual arena and decide
whether the allegations were correct or
whether the same were a counter-blast to
any
proceedings
initiated
by
the
respondents."

19. In view of above, I am of the
view that it would be inappropriate to
interfere in the present matter under
inherent jurisdiction of the Constitution.
Accordingly, application deserves to be
dismissed and is dismissed.
----------
(2020)1ILR 1636

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 8355 of 2009

Mohd. Yusuf Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri R.B. Singh, Sri Syed Ahmad Faizan, Sri
Syed Farman Ahmad Naqvi

Counsel for the Opposite Parties:
A.G.A.

A. First Information Report
- after
registration
of
the
FIR
and
commencement
of
investigation,
a
second FIR relating to the same incident
was lodged - the test of sameness is to be
applied to ascertain whether both the
FIRs relate to the same incident in
respect of the same occurrence or are in
regard to the incidents which are two or
more parts of the same transaction - in
case the answer is in affirmative, the
second FIR is liable to be quashed.

Both the first information reports have been
lodged against the same accused i.e., applicant
by the two officers of the same department.
Though the complainant/informant of both the
aforesaid FIRs is different person, both the
complainant/informant
have
lodged
their
respective FIRs in their official capacity on
behalf of the same department and not in their
personal capacity. (Para 29)

After reading the aforesaid facts and after
applying the principle of sameness, it is
explicitly clear that the second FIR is cryptic
and does not stand the test laid down by the
Apex Court. (Para 31)

Application u/s 482 allowed. (E-10)

List of cases cited: -

1. In Kari Choudhary Vs. Most. Sita Devi & ors
AIR 2002 SC 441

2. T.T. Antony Vs. State of Kerala and ors
(2001) 6 SCC 181

3. Pandurang Chandrakant Mhatre and ors Vs.
State of Maharastra (2009) 10 SCC 773

4. Babubhau Vs. State of Gujarat and ors
(2010) 12 SCC 254 (followed)

5. Amitbhai Anil Chandra Shah Vs. Central Bureau of
Investigation & anr (2013) 6 SCC 348

6. Surender Kaushik & ors Vs. State of U.P. &
ors (2013) 5 SCC 148 (distinguished)

7. Ramesh Baburao Devaskar Vs. State of
Maharashtra (citation not given)

8. Vikram Vs. State of Maharashtra (citation not given)

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)
1638 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Perusal of the order-sheet records
that despite several orders, notices issued
to opposite party no.2 has not been
returned back after service nor any body
has appeared on his behalf till date.

2. Learned counsel for the applicant
states that since the impugned first
information report had been lodged in the
official
capacity
by
the
first
informant/opposite
party
no.2
and
probably, he must have retired from
service, notice issued to opposite party
no.2 has returned back at all times.

3. This application under Section 482
Cr.P.C. has been filed to quash the chargesheet dated 20th August, 2008 in Case No.
7710 of 2008 arising out of Case Crime
No. 457 of 2008, under Sections 420, 468,
467 and 471 I.P.C., Police Station-Quarsi,
District-Aligarh.

4. Heard Mr. Syed Farman Ahmad
Naqvi, learned counsel for the applicant
and Mr. Amit Singh Chauhan and Mr.
Prashant
Kumar,
learned
Additional
Government Advocates for the State as
well as perused the entire materials
available on record.

5. Brief facts, as born out from the
record, are that a first information report
has been lodged on 27th May/June, 2008
by Pramod Kumar in the capacity of
Deputy Commandant, 45th Vahini P.A.C.
Aligarh for the alleged incident dated 23rd
April, 1988 against the applicant with the
allegation that on 23rd April, 1988, the
applicant, namely, Md. Yusuf Khan, S/o
Late Mohd. Sultan Khan, R/o village
Chhetarpur, Police Station-Sakaldeehan,
District-Chandauli, having been appointed
as cook in the P.A.C. Department, was
posted at Aligarh. At the time of
appointment, the applicant had disclosed
his forged date of birth as "01th
November, 1969" while concealing his
correct date of birth i.e. "3rd January,
1965" as also he had disclosed his
qualification as Class IX passed while
concealing that he was declared fail in the
High School Examination. The aforesaid
facts had also been verified from the
transfer certificate issued by the Principal,
Janta Higher Secondary School, Boobash
Dheena. At the time of appointment he had
also filed an affidavit, wherein he had
undertaken that all the facts in the form of
information
furnished
by
him
and
documents submitted by him were true and
genuine, whereas after verification it was
found that all were forged. For the
aforesaid
forgery
committed by
the
applicant,
the
informant
had
also
conducted a preliminary enquiry and after
enquiry, on the basis of statements and
records it was found that after misleading
the
department,
he
had
obtained
appointment on the basis of forged and
fabricated documents and filed a false
affidavit, while concealing his correct date
of birth and qualification. Seeing the
grievous offence, as committed by the
applicant, the informant has lodged the
first
information
report
against
the
applicant, which was registered as Case
Crime No. 457 of 2008, under Sections
420, 468, 467 and 471 I.P.C., Police
Station-Quarsi,
District-Aligarh.
After
conducting statutory investigation of the
aforesaid case crime number, under
Chapter XII Cr.P.C., the Police has
submitted
charge
sheet
against
the
applicant on 20th August, 2008 against
which, present application, under Section
482 Cr.P.C. has been filed.

6. On the present matter being placed
before this Court, on 10th April, 2009, a
1 All. Mohd. Yusuf Khan Vs. State of U.P. & Anr.
1639
Coordinate Bench of this Court passed
following order:

"Heard learned counsel for the
applicant and learned A.G.A.

The present application under
Section 482 Cr.P.C. has been filed for
quashing
the
charge
sheet
dated
20.08.2008 of Case Crime No. 457 of
2008, Case No. 7710 of 2008, under
Sections 420, 468, 467, 471 I.P.C., Police
Station Quarsi, District Aligarh.

It is contended by learned
counsel for the applicant that at the time of
appointment of the applicant under Dying
in Harness Rules, the applicant submitted
all his educational certificates to the
opposite party no.2 and thereafter, the
opposite party no.2 on 01.09.2006 lodged
an F.I.R. in Case Crime No. 620 of 2006,
under Sections 420, 464, 466, 467, 468,
471 I.P.C., against which the applicant
filed a Criminal Misc. Writ Petition before
the Division Bench of this Court and this
Court had granted interim order on
04.10.2006 and thereafter, final report has
been submitted in the aforesaid case on
04.12.2006. It is next contended by
learned counsel for the applicant that
thereafter, the applicant proceed on
medical leave and when the applicant sent
a letter for joining, the opposite party no.2
again lodged an F.I.R. in case Crime No.
457 of 2008, under Sections 420, 467, 468,
471 I.P.C. on 27th June, 2008 with the
same allegation as was made in the earlier
F.I.R. dated
01.09.2006.
It
is
last
contended by learned counsel for the
applicant that lodging of second F.I.R. and
submission of charge-sheet is bad in law
and cannot be sustained.

Issue notice to opposite party
no.2 returnable within a period of four
weeks. Steps be taken within a week.

Learned A.G.A. prays for and is
granted four weeks' time to file counter
affidavit. Opposite party no.2 may also file
counter affidavit within the same period.

As prayed by learned counsel for
the applicant one week thereafter, is
granted for filing rejoinder affidavit.

List immediately, after expiry of
the aforesaid period before appropriate
Bench.

Till the next date of listing, no
coercive action shall be taken against the
applicant in the aforesaid case."

7. Mr. Syed Farman Ahmad Naqvi,
learned counsel for the applicant has
informed the Court that for the same
offence,
as
alleged
to
have
been
committed by the applicant, departmental
proceedings were also initiated against the
applicant and after enquiry, the applicant
has been terminated from service. Against
the termination order, the applicant has
approached this Court by means of a writ
petition, which is still pending before this
Court.

8. Learned counsel for the applicant
further informed the Court that for the
same offence, as alleged to have been
committed by the applicant, a first
information report had been lodged on 1st
September, 2006 by Ramyash Singh, in
the
official
capacity
as
Assistant
Commandant, 45th Vahini, P.A.C. Aligarh
under Sections 420, 464, 466, 467, 468
and 471 I.P.C., Police Station Quarsi,
District-Aligarh, which has been registered
as Case Crime No. A 91 of 2006. After
conducting statutory investigation, under
Chapter XII Cr.P.C., the Police has
submitted final report on 4th December,
2006. Learned counsel for the applicant
further informed that after submission of
the Police report in the aforesaid case, the
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant proceeded on medical leave and
when the applicant sent a letter for joining,
along with medical report, mentioning his
fitness, the opposite party no.2 (informant
in the present case) has lodged the first
information
report
which
has
been
registered as Case Crime No. 457 of 2008,
under Sections 420, 468, 467 and 471
I.P.C., Police Station-Quarsi, DistrictAligarh, in which charge-sheet has been
submitted on 20th August, 2008 against
which the present application, under
Section 482 Cr.P.C., has been filed.

9. It is submitted by Mr. Naqvi,
learned counsel for the applicant that the
second first information report dated 27th
May/June, 2008 for the same cause of
action/offences/incident could not have
been lodged and entertained as law
prohibits lodging of the second first
information report in respect of the same
offence. To bolster the contention that the
second
FIR
could
not
have
been
entertained, the learned counsel for the
applicant has commended this Court to the
following decisions of the Apex Court:

(1) In Kari Choudhary Versus
Most. Sita Devi & Others; AIR 2002 SC
441;

(2) T.T. Antony v. State of
Kerala and others reported in (2001) 6
SCC 181;

(3) Pandurang Chandrakant
Mhatre
and
others
v.
State
of
Maharashtra reported in (2009) 10 SCC
773;

(4)
Babubhai
v.
State
of
Gujarat and others reported in (2010) 12
SCC 254; and

(5) Amitbhai Anil Chandra
Shah
Vs.
Central
Bureau
of
Investigation & Another, reported in
(2013) 6 SCC 348.

10. Mr. Naqvi, learned counsel for
the applicant, therefore, submits that in
view of the settled law as laid down in
various judgments by the Apex Court, the
impugned charge-sheet dated 20th August,
2008 submitted in pursuance of the second
first information report lodged on 23rd
April, 2008 against the applicant for the
same offence, cannot be legally sustained
and is liable to be quashed.

11. Mr. Amit Singh Chauhan and
Mr. Prashant Kumar, learned A.G.As. for
the State, per contra, has vehementally
opposed the submissions as urged by the
learned counsel for the applicant, by
submitting that there is no absolute
prohibition in law for lodging of a second
FIR and, more so, when allegations are
made from different spectrum or, for that
matter,
when
different
versions
are
putforth by different persons and there are
different accused persons. In support of
their plea, they have placed reliance upon
the judgment of the Apex Court in the case
of Surender Kaushik & Others Versus
State of Uttar Pradesh & Others
reported in (2013) 5 SCC 148.

12. This Court has considered the
submissions as urged by the learned
counsel for the applicant and the learned
A.G.A. for the State as well as gone
through the entire materials brought on
record.

13. Before coming to the merits of
the submissions made by the learned
counsel for the parties, it would be
relevant to refer Chapter XII of the Code,
which deals with information to the police
and their powers to investigate. As
provided under Section 154 of the Code of
Criminal Procedure (hereinafter referred as
the "Code/Cr.P.C."), every information
1 All. Mohd. Yusuf Khan Vs. State of U.P. & Anr.
1641
relating to commission of a cognizable
offence, either given orally or in writing is
required to be entered in a book, to be kept
by the officer-in-charge of the concerned
police station. The said FIR, as mandated
by law, should pertain to a cognizable
case. Section 2(c) of the Code defines
"cognizable offence" which also deals
with cognizable cases.

14. For ready reference, Sections 2
(c), 154 and 156 (3) Cr.P.C., which are
relevant
for
deciding
the
present
application, read as follows:-

"cognizable offence" means an
offence for which, and "cognizable case"
means a case in which, a police officer
may, in accordance with the First
Schedule or under any other law for the
time being in force, arrest without
warrant;

"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 subsection (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."

156. Police officer' s power to
investigate cognizable case.

(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable
case which a Court having jurisdiction
over the local area within the limits of
such station would have power to inquire
into or try under the provisions of Chapter
XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that
the case was one which such officer was
not empowered under this section to
investigate.

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above- mentioned."

15. If the primary requirement is
satisfied, an FIR is to be registered and the
criminal law is set in motion and the
officer-in-charge of the police station takes
up the investigation. The question that has
emerged for consideration in this case is
whether after registration of the FIR and
commencement of the investigation, a
second FIR relating to the same incident
on the basis of a direction issued by the
learned Magistrate under Section 156(3) of
the Code can be registered.
1642 INDIAN LAW REPORTS ALLAHABAD SERIES

16. For apposite appreciation of the
issue raised, it is necessary to refer to
certain authorities which would throw
significant light under what circumstances
entertainment of second FIR is prohibited.

17. In Kari Chaudhary (Supra), the
Apex Court has observed that of course it
is settled law that there cannot be two first
information reports against the same
accused in respect of same case, but when
there are rival versions in respect of same
episode, they would normally take the
shape of two different first information
reports and investigation can be carried on
under both of them by the same
investigating agency.

18. For ready reference, paragraph
nos. 11 and 12 of the judgment of the
Apex Court
in
the
case
of
Kari
Choudhary (Supra) read as follows:

"11. Learned counsel adopted an
alternative contention that once the
proceeding 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 208. Of course the legal
position is that there cannot be two FIRs
against the same accused in 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 by the court
styling it as FIR No. 208 of 1998 need be
considered as an information submitted to
the court reading the new discovery made
by the police during investigation the
persons not named in FIR No. 135 are the
real
culprits.
The
quash
the
said
proceeding 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.

12.
Even
otherwise
the
investigating agency is not precluded from
further investigation in respect of an
offence in spite of forwarding a report
under Sub-section (2) of Section 173 on a
previous occasion. This is clear from
Section
173(8)
of
the
Code."
(emphasis added)

19. In T.T. Antony (supra), it was
canvassed on behalf of the accused that the
registration of fresh information in respect
of the very same incident as an FIR under
Section 154 of the Code was not valid and,
therefore, all steps taken pursuant thereto
including investigation were illegal and
liable to be quashed. The Bench, analyzing
the scheme of the provisions of Sections
154, 155, 156, 157, 162, 169, 170 and 173
of the Code, came to hold that only the
earliest or the first information in regard to
the commission of a cognizable offence
satisfies the requirements of Section 154
of the Code and, therefore, there can be no
second FIR 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. It was further
observed that on receipt of information
about a cognizable offence or an incident
giving rise to a cognizable offence or
offences and on entering the FIR 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
1 All. Mohd. Yusuf Khan Vs. State of U.P. & Anr.
1643
course of the same transaction or the same
occurrence and file one or more reports as
provided in Section 173 of the Code.

20. It would be worthwhile to
reproduce paragraph nos. 20, 28 and 35, in
the case of T.T. Antony (Supra), the
Apex Cour, which read as follows:

""20. From the above discussion
it follows that under the scheme of the
provisions of Sections 154, 155,156, 157,
162, 169, 170 and 173 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 FIR
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
FIR 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 Cr.P.C.

28...........................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.

35. 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
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
(Emphasis added)

21. In Pandurang Chandrakant
Mhatre (supra), the Apex Court referred
to cases of T.T. Antony (supra), Ramesh
Baburao Devaskar v. State of Maharashtra,
and Vikram v. State of Maharashtra and
opined that the earliest information in
regard to the commission of a cognizable
offence is to be treated as the first
information report and it sets the criminal
law in motion and the investigation
commences on that basis. Although the
first information report is not expected to
be an encyclopaedia of events, yet an
information to the police in order to be
first information report under Section
154(1) of the Code, must contain some
essential and relevant details of the
incident. A cryptic information about the
commission of a cognizable offence
irrespective of the nature and details of
such information may not be treated as
first information report. After so stating,
the Bench posed the question whether the
information regarding the incident therein
entered into general diary given by PW-5
is the first information report within the
meaning of Section 154 of the Code and, if
so, it would be hit by Section 162 of the
Code. It is worth noting that analyzing the
facts, the Court opined that information
given to the police to rush to the place of
the incident to control the situation need
not necessarily amount to an FIR.

22. In Babubhai (supra), the Apex
Court,
after
surveying
the
earlier
decisions, expressed the view that the
court has to examine the facts and
circumstances giving rise to both the FIRs
and the test of sameness is to be applied to
find out whether both the FIRs relate to the
same incident in respect of the same
occurrence or are in regard to the incidents
which are two or more parts of the same
transaction. If the answer is in the
affirmative, the second FIR is liable to be
quashed. However, in case the contrary is
proved, where the version in the second
FIR is different and they are in respect of
two different incidents/crimes, the second
FIR is permissible. In case the accused in
the first FIR comes forward with a
different version or counterclaim in
respect of the same incident, investigation
on both the FIRs has to be conducted.

23. In paragraph nos. 14, 17, 20 &
21, in the case of Babubhai (Supra), the
Apex Court has observed as follows:

"14. In Upkar Singh Vs. Ved
Prakash & Ors. (2004) 13 SCC 292, this
Court considered the judgment in T.T.
Antony (supra) and explained that the
judgment in the said case does not exclude
the registration of a complaint in the
nature of counter claim from the purview
of the court. What had been laid down by
this Court in the aforesaid case is that any
further
complaint
by
the
same
complainant against the same accused,
1 All. Mohd. Yusuf Khan Vs. State of U.P. & Anr.
1645
subsequent to the registration of a case, is
prohibited under the Cr.P.C. because an
investigation in this regard would have
already started and further the 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 Cr.P.C.
However, this rule will not apply to a
counter claim by the accused in the first
complaint or on his behalf alleging a
different version of the said incident.
Thus, in case, there are rival versions in
respect
of
the
same
episode,
the
Investigating Agency would take the
same
on
two
different
FIRs
and
investigation can be carried under both
of them by the same investigating agency
and thus, filing an FIR pertaining to a
counter claim in respect of the same
incident having a different version of
events, is permissible.

17. In Rameshchandra Nandlal
Parikh Vs. State of Gujarat & Anr. (2006)
1 SCC 732, this Court reconsidered the
earlier judgment including T.T. Antony
(supra) and held that in case the FIRs are
not in respect of the same cognizable
offence or the same occurrence giving rise
to one or more cognizable offences nor are
they alleged to have been committed in the
course of the same transaction or the same
occurrence as the one alleged in the First
FIR, there is no prohibition in accepting
the second FIR.

20. Thus, in view of the above,
the law on the subject emerges to the effect
that an FIR under Section 154 Cr.P.C. is a
very important document. It is the first
information of a cognizable offence
recorded by the Officer In-Charge of the
Police Station. It sets the machinery of
criminal law in motion and marks the
commencement of the investigation which
ends with the formation of an opinion
underSection 169 or 170 Cr.P.C., as the
case may be, and forwarding of a police
report under Section 173Cr.P.C. Thus, it
is quite possible that more than one piece
of information be given to the Police
Officer In- charge of the Police Station in
respect of the same incident involving one
or more than one cognizable offences. In
such a case, he need not enter each piece
of information in the Diary. All other
information given orally or in writing after
the commencement of the investigation
into the facts mentioned in the First
Information Report will be statements
falling under Section 162 Cr.P.C.

21. In such a case the court has
to examine the facts and circumstances
giving rise to both the FIRs and the test
of sameness is to be applied to find out
whether both the FIRs relate to the same
incident
in
respect
of
the
same
occurrence or are in regard to the
incidents which are two or more parts of
the same transaction. If the answer is
affirmative, the second FIR is liable to be
quashed. However, in case, the contrary
is proved, where the version in the second
FIR is different and they are in respect of
the two different incidents/crimes, the
second FIR is permissible. In case in
respect of the same incident the accused
in the first FIR comes forward with a
different version or counter claim,
investigation on both the FIRs has to be
conducted." (Emphasis
added)

24. In Amitbhai Anilchandra Shah
(Supra), the Apex Court has clearly
observed that there can be no second FIR,
hence there can be no fresh investigation
on receipt of every subsequent information
in respect of same cognizable offence or
the same occurrence or incident giving rise
to one or more cognizable offences,
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, second FIR can be held to be
invalid and quashed, as per the scheme of
Code
of
Criminal
Procedure
and
fundamental rights of an accused provided
under Articles 14, 20 and 21 of the
Constitution of India.

25. In paragraph-37, 38 and 60 in the
case of Amitbhai Anilchandra Shah
(Supra), the the Apex Court has observed
as follows:

"37. This Court has consistently
laid down the law on the issue interpreting
the Code, that a second FIR in respect of
an offence or different offences committed
in the course of the same transaction is not
only impermissible but it violates Article
21 of the Constitution. In T.T. Anthony
(supra), this Court has categorically held
that registration of second FIR (which is
not a cross case) is violative of Article 21
of
the
Constitution.
The
following
conclusion in paragraph Nos. 19, 20 and
27 of that judgment are relevant which
read as under:

"19. The scheme of CrPC is that
an officer in charge of a police station has
to commence investigation as provided in
Section 156 or 157 CrPC on the basis of
entry of the first information report, on
coming to know of the commission of a
cognizable offence. On completion of
investigation and on the basis of the
evidence collected, he has to form an
opinion under Section 169 or 170 CrPC,
as the case may be, and forward his report
to the Magistrate concerned under Section
173(2) CrPC. 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 CrPC.

20. From the above discussion it
follows that under the scheme of the
provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 CrPC only the
earliest or the first information in regard
to the commission of a cognizable offence
satisfies the requirements of Section 154
CrPC. Thus there can be no second FIR
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
FIR 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 CrPC.

27. 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 CrPC 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 Narang case it was,
however, observed that it would be
appropriate
to
conduct
further
investigation with the permission of the
1 All. Mohd. Yusuf Khan Vs. State of U.P. & Anr.
1647
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) CrPC. It would clearly be beyond
the purview of Sections 154 and 156
CrPC, 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 under way 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 CrPC
or
under
Articles
226/227
of
the
Constitution."

The above referred declaration
of law by this Court has never been diluted
in
any
subsequent
judicial
pronouncements even while carving out
exceptions.

38. Mr. Rawal, learned ASG, by
referring T.T. Anthony (supra) submitted
that the said principles are not applicable
and
relevant
to
the
facts
and
circumstances of this case as the said
judgment laid down the ratio that there
cannot be two FIRs relating to the same
offence or occurrence. Learned ASG
further pointed out that in the present
case,
there
are
two
distinct
incidents/occurrences, inasmuch as one
being the conspiracy relating to the
murder of Sohrabuddin with the help of
Tulsiram Prajapati and the other being the
conspiracy to murder Tulsiram Prajapati -
a
potential
witness
to
the
earlier
conspiracy to murder Sohrabuddin. We
are unable to accept the claim of the
learned ASG. As a matter of fact, the
aforesaid proposition of law making
registration of fresh FIR impermissible
and violative of Article 21 of the
Constitution is reiterated, re-affirmed in
the following subsequent decisions of this
Court:

1. Upkar Singh vs. Ved Prakash
(2004) 13 SCC 292

2. Babubhai vs. State of Gujarat
& Ors. (2010) 12 SCC 254

3. Chirra Shivraj vs. State of
A.P. AIR 2011 SC 604

4. C. Muniappan vs. State of
Tamil Nadu (2010) 9 SCC 567.

In C. Muniappan (supra), this
Court explained "consequence test", i.e.,
if an offence forming part of the second
FIR arises as a consequence of the
offence alleged in the first FIR then
offences covered by both the FIRs are the
same and, accordingly, the second FIR
will be impermissible in law. In other
words, the offences covered in both the
FIRs shall have to be treated as a part of
the first FIR.

60. In view of the above
discussion and conclusion, the second FIR
dated
29.04.2011
being
RC
No.
3(S)/2011/Mumbai filed by the CBI is
contrary to the directions issued in
judgment and order dated 08.04.2011 by
this Court in Writ Petition (Criminal) No.
115 of 2009 and accordingly the same is
quashed. As a consequence, the charge
sheet filed on 04.09.2012, in pursuance of
the
second
FIR, be
treated
as
a
supplementary charge sheet in the first
FIR. It is made clear that we have not
gone into the merits of the claim of both
the parties and it is for the trial Court to
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
decide the same in accordance with law.
Consequently, Writ Petition (Criminal)
No. 149 of 2012 is allowed. Since the said
relief is applicable to all the persons
arrayed as accused in the second FIR, no
further direction is required in Writ
Petition (Criminal) No. 5 of 2013."

(Emphasis added)

26. In Surender Kaushik (Supra)
referred
by
the
learned
Additional
Government Advocates for the State, the
Apex Court has observed that the lodging
of two FIRs is not permissible in respect of
one and the same incident. The concept of
sameness has been given a restricted
meaning. The rival versions in respect of
same incident do not take different shapes
and in that even, lodging of two first
information reports is permissible. Thus
counter-first information report in respect
of
same
or
connected
incident
is
permissible.

27. For ready reference, paragraph
nos. 24 and 25 in the case of Surender
Kasuhik (Supra) is quoted herein-under:

"24.
From
the
aforesaid
decisions, it is quite luminous that the
lodgment of two FIRs is not permissible in
respect of one and the same incident. The
concept of sameness has been given a
restricted meaning. It does not encompass
filing of a counter FIR relating to the same
or connected cognizable offence. What is
prohibited is any further complaint by the
same complainant and others against the
same
accused
subsequent
to
the
registration of the case under the Code,
for an investigation in that regard would
have already commenced and allowing
registration of further complaint would
amount to an improvement of the facts
mentioned in the original complaint. As is
further made clear by the three-Judge
Bench in Upkar Singh (supra), the
prohibition does not cover the allegations
made by the accused in the first FIR
alleging a different version of the same
incident. Thus, rival versions in respect of
the same incident do take different shapes
and in that event, lodgment of two FIRs is
permissible.

25. In the case at hand, the
appellants lodged the FIR No. 274 of 2012
against four accused persons alleging that
they had prepared fake and fraudulent
documents. The second FIR came to be
registered on the basis of the direction
issued by the learned Additional Chief
Judicial Magistrate in exercise of power
under Section 156(3) of the Code at the
instance of another person alleging, inter
alia, that he was neither present in the
meetings nor had he signed any of the
resolutions of the meetings and the
accused persons, five in number, including
the appellant No. 1 herein, had fabricated
documents and filed the same before the
competent authority. FIR No. 442 of 2012
(which gave rise to Crime No. 491 of
2012) was registered because of an order
passed by the learned Magistrate. Be it
noted, the complaint was filed by another
member of the Governing Body of the
Society and the allegation was that the
accused persons, twelve in number, had
entered into a conspiracy and prepared
forged documents relating to the meetings
held on different dates.