# T.T. ANTONY v. STATE OF KERALA AND ORS

- **Citation:** [2001] 3 S.C.R. 942
- **Court:** Supreme Court of India
- **Decided:** 2001-07-12
- **Case number:** Criminal Appeal No. A 689 of 2001
- **Bench:** Syed Shah Mohammed Quadri, S.N. Phukan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-t-antony-v-state-of-kerala-and-ors-18022
- **Pages:** 27

## Headnote

Criminal Procedure Code, 1973--Sections 154,155, 156, 157, 162,169, 170
and 173.
Second FIR-Maintainability of-Held, there can be no second FIR in
respect of the same cognizable offence-Only information first entered in the
Station House Diary can be regarded as FIR under Section 154-All
subsequent information regarding the case, will fall under Section 162.
Power of Police officer to investigate a case-Scope of-Held, Police
Officer not merely to investigate a congnizable offence reported in FIR but
all other connected offences committed in the course of same transaction.
Constitution of India, J 950-Articles 226, 227 and J 36-Statuto1y
power of police officer to investigate a congnizable offence-lnteiference by
Courts-Permissibility of-Filing of second FIR and fresh investigation in
respect of the same cognizable offence-Validity of-Held, power of
investigation can be inteifered with. if the police officer transgresses his
statut01y power-Registration of second FIR and fi·esh investigation pursuant
thereto is beyond the purview of sections 154 and 156 and amounts to abuse
of process of statut01y power of investigation-Criminal Procedure Code,
1973-Sections 482, 154, 156.
Commission of lnqui1y Act, 1952-Section 3(1)-Report of Commission
of biqui1y-Nature of-Held, not binding on government or courts-However,
investigating agency can adva.ntageously make use of such report.
Words and Phrases
F.l.R.·-Meaning of in the context of Section 154 of Criminal Procedure
Code. 1973.
During the Visit of a Minister belonging to ruling UDF Governm"ent of
942
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T.T. ANTONY v. ST ATE
943
Kerala to Kannur District, violent demonstrations were held by members of A
-~
Y,Oμth wing of a rival political party (CPI(M)). To bring the situation under
control, police resorted to firing and lathi charge, as a result of which five
persons died and more than hundred persons suffered injuries. Two FIRs
were lodged against several unidentifiable persons belonging to rival political
party in respect of such incidents of violence at two places. On public demand, B
State Government appointed an Inquiry Commission. In the meantime,
,-
assembly elections were held in the State and LDF Government led by CPI
(M) came to power. The Inquiry Commission submitted its report holding that
,x
the police firing was unjustified and a former Minister, Dy. Superintendent
of Police, Kannur and Dy. Collector Kannur were responsible for the incident.
Government accepted the Inquiry Commission report and directions were c
issued for taking legal action against those who were held guilty in the
report. Director General of Police held that since the firing was without
justification, in which people were killed, it amounted to murder, and ordered
registration of case under the appropriate section. Thus, fresh F.I.R. was
registered against the former Minister, the Dy. Superintendent of Police,
D
·Kannur, the former Dy. Collector, Kannur and several other police personnel.
Aggrieved, writ petitions were flied for quas~ing the F.I.R or alternatively for
\
investigation of the case by C.B.I. Single Judge of High Court disposed of tlie
writ petitions by directing re-investigation of the case by C.B.I. On appeal,
Division Bench of High Court wLile quashing the F.I.R. against Dy.
Superintendent of Police, directed fresh investigation of the case by State E
Police instead of investigation by C.B.I. Hence the present appeal.
On behalf of the appellants it was contended that second FIR was
registered in respect of the same cognizable offence regarding which two
FIRs were already filed and investigation in those cases were pending. Thus,
y
registration of a fresh information in respect of very same incident as an FIR F
under Section 154 Cr.P.C. was not valid and, therefore, all steps taken
pursuant thereto including investigation were illegal and liable to be quashed.
., .
Disposing of the appeals, the Court
.J
HELD : 1.1. There can be no se

## Text

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T.T. ANTONY
v.
STATE OF KERALA AND ORS.
JULY 12, 2001
[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]
Criminal Procedure Code, 1973--Sections 154,155, 156, 157, 162,169, 170
and 173.
Second FIR-Maintainability of-Held, there can be no second FIR in
respect of the same cognizable offence-Only information first entered in the
Station House Diary can be regarded as FIR under Section 154-All
subsequent information regarding the case, will fall under Section 162.
Power of Police officer to investigate a case-Scope of-Held, Police
Officer not merely to investigate a congnizable offence reported in FIR but
all other connected offences committed in the course of same transaction.
Constitution of India, J 950-Articles 226, 227 and J 36-Statuto1y
power of police officer to investigate a congnizable offence-lnteiference by
Courts-Permissibility of-Filing of second FIR and fresh investigation in
respect of the same cognizable offence-Validity of-Held, power of
investigation can be inteifered with. if the police officer transgresses his
statut01y power-Registration of second FIR and fi·esh investigation pursuant
thereto is beyond the purview of sections 154 and 156 and amounts to abuse
of process of statut01y power of investigation-Criminal Procedure Code,
1973-Sections 482, 154, 156.
Commission of lnqui1y Act, 1952-Section 3(1)-Report of Commission
of biqui1y-Nature of-Held, not binding on government or courts-However,
investigating agency can adva.ntageously make use of such report.
Words and Phrases
F.l.R.·-Meaning of in the context of Section 154 of Criminal Procedure
Code. 1973.
During the Visit of a Minister belonging to ruling UDF Governm"ent of
942
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'-
.....
..
t
i
/'--
:. ';~
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T.T. ANTONY v. ST ATE
943
Kerala to Kannur District, violent demonstrations were held by members of A
-~
Y,Oμth wing of a rival political party (CPI(M)). To bring the situation under
control, police resorted to firing and lathi charge, as a result of which five
persons died and more than hundred persons suffered injuries. Two FIRs
were lodged against several unidentifiable persons belonging to rival political
party in respect of such incidents of violence at two places. On public demand, B
State Government appointed an Inquiry Commission. In the meantime,
,-
assembly elections were held in the State and LDF Government led by CPI
(M) came to power. The Inquiry Commission submitted its report holding that
,x
the police firing was unjustified and a former Minister, Dy. Superintendent
of Police, Kannur and Dy. Collector Kannur were responsible for the incident.
Government accepted the Inquiry Commission report and directions were c
issued for taking legal action against those who were held guilty in the
report. Director General of Police held that since the firing was without
justification, in which people were killed, it amounted to murder, and ordered
registration of case under the appropriate section. Thus, fresh F.I.R. was
registered against the former Minister, the Dy. Superintendent of Police,
D
·Kannur, the former Dy. Collector, Kannur and several other police personnel.
Aggrieved, writ petitions were flied for quas~ing the F.I.R or alternatively for
\
investigation of the case by C.B.I. Single Judge of High Court disposed of tlie
writ petitions by directing re-investigation of the case by C.B.I. On appeal,
Division Bench of High Court wLile quashing the F.I.R. against Dy.
Superintendent of Police, directed fresh investigation of the case by State E
Police instead of investigation by C.B.I. Hence the present appeal.
On behalf of the appellants it was contended that second FIR was
registered in respect of the same cognizable offence regarding which two
FIRs were already filed and investigation in those cases were pending. Thus,
y
registration of a fresh information in respect of very same incident as an FIR F
under Section 154 Cr.P.C. was not valid and, therefore, all steps taken
pursuant thereto including investigation were illegal and liable to be quashed.
., .
Disposing of the appeals, the Court
.J
HELD : 1.1. There can be no second FIR under Section 154 of the G
,..
Criminal Procedure Code, 1973 in respect of very same cognizable offence
and consequently there can be no fresh investigation pursuant thereto. Thus,
_.,,(
in the instant case, registration of second FIR regarding very same cognizable
offence is invalid and investigations made thereunder is improper. (959-A)
1.2. An information given under sub-section (1) of Section 154 of the H
944
SUPREME COURT REPORTS
(200 I] 3 S.C.R.
.-.;;..,.
A Code is commonly known as First Information Report (F.I.R.) which sets the
criminal law into motion and marks the commencement of the investigation
jr,
which ends up with the formation of opinion under Section 169 or 170 of the
Code and forwarding of a police report under Section 173 of the Code. It is
quite possible and it happens not infrequently that more information reports
B
than one are given to a police officer in charge of a Police Station in respect
of the same incident involving one or more than one cognizable offence. In
such a case he need not enter every one of them in the Station House Diary
)
and this is implied in Section 154 of the Code. The information first entered
in the station house diary, kept for this purpose, by a police officer in charge
><..._
of a police station is the First Information Report - F.I.R. postulated by Section
c 154. All other information made orally or in writing after the commencement
of the investigation into the cognizable offence will be statements falling
under Section 162 of the Code. No such information/statement can properly
be treated as an FIR and entered in the station house diary again, as it would
in effect be a second FIR and the same cannot be in conformity with the
D
scheme of the Code. [957-F-H; 958-AJ
Ram Lal Narang & Ors. v~ State (Delhi Administration), [1979) 2 SCC
322 and M. Krishna v. State of Karnataka, [1999) 3 SCC 247, distinguished.
I
1.3. The scheme of the Code is that an officer in charge of a Police
E Station has to commence investigation as provided in Section 156 or 157 Cr.
P.C. 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 evidence collected he has ~o form opinion under Section 169
or 170 of the Code, as the case may be, and forward his report to the
concerned Magistrate under Section 173(2). However, even after filing such
y
F 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 fonyard the
.•.
same with one or more further reports; this is the import of sub-section (8)
....
of Section 173 Cr.P.C. On receipt of information about a cognizable offence
....
G or an incident giving rise to a cognizable offence or offences and on entering
~"'
the F.I.R. in the Station House Diary, the officer in charge of a Police Station
has to investigate not merely the cognizable offence reported in the FIR but
')._
also other connected offences found to have been committed in the course of
the same transactjon or the same occurrence and file one or more n:ports
H as provided in Section 173 Cr.P.C.-[958-E-G; 959-B)
),
T.T. ANTONY v. STATE
945
1.4. In the instant case, the second FIR was registered in respect of the A
same incident and on the same facts after three years. In truth and substance,
;.j{
the essence of the offence registered under the first ·FIR was same as in the
second FIR. When the Inquiry Commission submitted its report to the
Government, investigation on the basis of first FIR was in progress. 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 B
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 the instant case, namely, the registration .
of the information as the second FIR in regard to the same incident and , C
making a fresh investigation is not permissible under the scheme of the
provisions of Cr.P.C., therefore, investigation undertaken and the report
thereof cannot but be invalid. (964-H; 965-A-B)
2.1. The right of the police to investigate into a cognizable offence is .0
a statutory right over which the court does not possess any supervisory
jurisdiction under the Code. This plenary power of the police to investigate
a cognizable offence is, however, not unlimited. It is subject to certain well
recognised limitation. Where the police transgresses its statutory power of
investigation the High Court under Section 482 Cr.P.C. or Article 226/227
of the Constitution and this Court in appropriate case can interdict the E
investigation to prevent abuse of the process of the Court or otherwise to
secure the ends of justice. (960-H; 961-C-EJ
2.2. A just balance between the fundamental rights of the citizens under
Articles 19 and 21 of Constitution and the expansive power of the police to
investigate a cognizable offence has to be struck by the Court. There cannot F
be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the
police to make further investigation, obtain further evidence (both oral and
documentary) and forward a further report or reports to the Magistrate.
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 G
incident, giving rise to one or more cognizable offences, consequent upon
filing of successive FIRs whether before or after filing the final report under
Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154
and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation
in a given case. A case .of fresh investigation based on the second or successiye
FIRs, not being a counter case, filed in connection with the same or connected H
946
SUPREME COURT REPORTS
[200 I] 3 S.C.R.
A cognizable offence alleged to have been committed in the course of the same
transaction and in respect of which pursuant to the first FIR either investigation
is underway or final report under ·section 173(2) has been forwarded to the
Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C.
or under Article 226/227 of the Constitution. [963-A-C]
B
Emperor v. Khwaja Nazir Ahmad, AIR (32) 1945 PC 18 and State of
Haryana v. Bhajan Lal & Ors., [1992) Supp. 1 SCC 335, relied on.
State of West Bengal v. Swapan Kumar Guha, [1982) 1 SCC 561; S.N.
Sharma v. Bipen Kumar Tiwari, [1970) 1 SCC 653; R.P. Kapur v. State of
C Punjab, [1960) 3 SCR 388; Nandini Satpathy v. P.L. Dani, [1978) 2 SCC 424
and Prabhu Dayal Deorah v. District Magistrate, Kamrup, [1974) 1SCC103,
referred to.
3. The finding of the Commission of Inquiry is not binding on the
Government or Courts and it is purely recommendatory in nat'ure. The report
D and findings of the Commission of Inquiry are meant for information of the
Government. Acceptance of the report of the Commission by the Government
~ould only suggest that being bound by the Rule oflaw and having duty to
act fairly, it has endorsed to act upon it. The duty of the police - investigating
agency of the State - is to act in ?Ccordance With the law of the land. Acting
thus, the investigating agency may with advantage make use of the report of
E the Commission in its onerous task of inv.estigation bearing in mind that it
does not preclude the investigating agency from formi_ng a different opinion
under Section 169/170 ofCr.P.C. ifthe evidence obtained by it supports such
a conclusion. The Courts, civil or criminal, are not bound by the report or
findings of the Commission of Inquiry as they have to arrive at their own
F decision ~n the evidence placed before them in accordance with law.
[966-H; 967-D)
•
Re : Maharaja Madhava Singh, (3) Indian Appeals 239 (PC); Shri Ram
Krishna f?almia v. Shri Justice S.R. Te_ndolkar & Oii, [1959) SCR 279; State
of Karnataka v. Union of India & Anr., [1977) 4 SCC 608 and Sham Kant
G v. State of Maharashtra, [1992) Suppl. 2 sec 52i, relied on.
R. v. Metropolitan Police Commissioner, (1968) 1 All E.L.R. 763, referred
to.
M. V. Rajwade,J.A.S. District Magistrate v. Dr. S.M. Hassan & Ors., ;\IR
H (1954) Nagpur 71, approved.
)
T.T. ANTONY v. STATE [QUADRI, J.]
947
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A
689 of 2001.
From the Judgment and Order dated 29.2.2000 of the Kerala High Court
in W.A. No. 52 of 2000.
WITH
CIVIL APPEAL No. 4066 of2001.
From the Judgment and Order dated 29.2.2000 of the Kerala High Court
in W.A. No. 200of2000.
·
WITH
CRIMINAL APPEAL Nos. 690-691 of2001.
B
c
From the Judgment and Order dated 29.2.2000 of the Kerala High Comt D
in W.A. No. 2709/99-A and 8 of2000.
Harish N. Salve, Solicitor General, Mahendra Anand, C.S. Vaidyanathari,
T.L.V. Iyer Sr. Advs., Ramesh Babu M.R., M.T. George, M.K. Damodaran,
Gopala K. Kurup, G. Prakash, Ms. Beena Prakash, Roy Abraham, Dileep Pillai,
Himinder Lal, P. Parmeswaran, T.C. Sharma, Jyothis and Mohammed Yusuf for E
the appearing parties.
The Judgment of the Court was delivered by
SYED SHAH MOHAMMED QUADRI, J. Leave is granted in all the
special leave petitions.
F
These four appeals arise out of the common judgment of a Division
Bench of the High Court ofKerala at Emakulam in WA Nos. 2708/1999, 2709/
1999, 2710/1999, 8/2000, 52/2000 and 200/2000 dated February 29, 2000. Criminal
Appeal No. 689 of2001 (arising out ofSLP(Crl.) No.1522/2000) is filed by T.T. G
Antony, Deputy Collector and Executive Magistrate, Kannur; Civil Appeal
No. '4066 of 200 l (Arising out of SLP(C) No. 8840/2000) is filed by fourteen
police constables; and Criminal Appeal Nos. 690-691 of2001 (Arising out of
SLP(Crl.) Nos. 2724-25/2000 are filed by the State of Kerala. These appeals
relate to the same incident and raise common questions of facts and law so
they are being dealt with together.
H
~·
.~. '
I
948
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A
The relevant facts, giving rise to these appeals, which have a strong
political backdrop, need to be noticed for appreciating the contentions of the
parties.
"J. ·
The Communist Party of India (Marxist), C.P.I.(M), is said to have a
strong hold in Kannur District of the State of Kerala. One Mr. M.V. Raghavan
'B who was once a comrade-in-arms in C.P.I.(M) and was its M.L.A. for over 15
years, broke away from that party and formed a new party-'The Communist
Marxist Party' (CMP). He was elected as an M.L.A on t}le ticket of CMP from
the Azheekkode Constituency, Kannur District. The CMP became a constituent
of United Democratic Front (UDF) which formed the Government and was in
C power in the State of Kerala during the relevant period. He was a Minister
in UDF Government having the portfoliO" of Co-operation and Ports. This gave
rise to retribution in the rank and tile of C.P.1.(M) particularly in the youth
wing (DYFI) which took upon itself to prevent his visits to Kannur District.
In January 1993 during his visit to Azhikal (Kannur District) a few countrymade bombs were hurled on him:ln view of that incident, the then Government
D ordered elaborate security arrangements for all his visits to Kannur District.
It appears, much against the advice of the district administration, the Minister
finalised his visit, for inauguration of the 'evening branch of the Co~operative
Urban Bank' in the Alakkandy Complex at Kuthuparamba - Tellicherry Road
(Kannur District) on November 25, 1994. Far from being auspicious, it turned
E out to be an ill-starred day not only for the victims of police excesses and
their families but also for the public and the public authorities as five persons
died and six persons were injured in the police firing purportedly resorted to
for the protection of the Minister and of public and private properties. In the
melee which preceded the police firing more than hundred persons suffered
injuries in the lathi charge and a few police pe'rsonnel also sustained injuries.
F
The police opened fire at two places - (i) in the proximity of the town
hall on the orders of the Executive Magistrate and the Deputy Superintendent
of Po!lce and (ii) in the vicinity of police station, Kuthuparamba on the orders
of the Superintendent of Police. In respect of the occurrence near the town
G hall, the Assistant Superintendent of Police of Thalassery registered Crime
No: 353/94 ofKuthuparamba Police Station under Sections 143, 147,148, 332,
353,324, 307 read with Section 149 IPC, Section 3(2)(e) of P.D.P.P. Act and
Sections 3 and 5 of Explosive Subs_tances Act against eight named and many
other unidentifiable persons belonging to CPl(M) including the President of
DYFI. In regard to the occurrence in the vicinity of the Police Station, the
H Superintendent of Police registered Crime No. 354/94 of Kuthuparamba Police
I
I
T.T. ANTONY v. STATE (QUADRI, J.]
949
Station under Sections 143, 147, 148, 427, 307 read with Section 149 IPC and A
-""<
Section 3(2)(e) of P.D.P.P. Act against unidentifiable persons of CPI(M) fot
forming an unlawful assembly. Both the said crimes were registered on the
date of the incident-on November 25, 1994. On that day itself the Executiv~
Magistrate submitted a report to the District Collector who in tum informed.
\
the Commissioner and Secretary to the Government regarding the police firing B
at Kuthuparamba (Ex.P3). On November 26, 1994, the Superintendent of Police
sent a report of the incident of the previous day to Director General of Police,
Kerala (Ex.P-4).
That incident gave rise to public uproar and demand for judicial inquiry.
On January 20, 1995, the then Kerala Government of UDF appointed Mr. K. C
Padmanabhan Nair, the learned District & Sessions Judge, Thalassary as
Commission of Inquiry under Section 3(1) of the Commission of Inquiry Act,
1952 to inquire into :
"(i) The circumstances which led to the firing by police on 25.11.94
at Kuthuparamba Kannur District which resulted in the death of D
five persons and injuries to many others.
(ii)
Whether the said firing by the police was justified.
(iii) The person/persons responsible for the firing.
(iv) Such other matters as the incidental to and arising out of the E
above."
The 1996 assembly elections in the State of Kerala resulted in the
change of the Government. The UDF lost to LDF which came to power and
headed by CPI(M) formed the Government. On May 27, 1997 the Commission
submitted its report to the LDF Government of Kerala recording the following F
findings :
"(I) The uncomprising attitude of Sri M.V. Raghavan, former Minister
of Co-operation and Ports to attend the inaugural function of the
opening of the evening branch of the Co-operative Urban Bank,
Kuthuparamba inspite of the prior informations of the possible O
consequences of his visit to Kuthuparamba is the root cause for
the firing. The avoidable lathi charge which ignited the incidents
at the instance and leadership of Sri Abdul Hakkim Bathery, Dy.
S.P. Kannur paved way for the firing. The failure on t):ie part of
Sri T.T. Antony, Dy. Collector and Executive Magistrate to
evaluate and take stock of the situation ended in the police firing H
950
A
B
SUPREME COURT REPORTS
(2001] 3 S.C.R.
resulting in the death of five persons and injuries to many
others.
..
(2)
The police firing at Kuthuparamba on 25.11.94 was not justified.
(3)
Sri M.V. Raghavan, the former Minister for Co-operation and
Ports. Sri Abdul Hakkim Bathery Dy. S.P. Kannur and Sri T.T.
Antony former Dy. Collector, Kannur were responsible for the
police firing."
The report of the Commission was acc.epted by the Government. On
::..:_
June 30, 1997, as a follow-up action, the Additional Chief Secretary to the
Government of Kerala, while enclosing a copy of the said report, wrote to the
C Director General of Police regarding acceptance of the report of the Commission
by the Government and directed that legal action be taken against those
responsible on the basis of findings of the Commission. The Director General
of Police issued orders to the Inspector General of Police (North Zone), on
July 2, 1997, to register a case immediately and have the same investigated
D by a senior officer. On July 4, 1997 the Inspector General of Police noted that
firing without justification by which people were killed amounted to murder
and issued direction to the Station House Officer to register a case under the
appropriate sections and forward the investigation copy of the F.l.R. to the
Deputy Inspector General of Police, Nor~h Zone, for urgent personal
investigation. On that information the Deputy Superintendent of Police,
E Thalassery, registered Crime No. 268/97 ofKuthuparamba Police Station under
Section 302, IPC arraigning the said M.V. Raghavan, A.H. Bathery and T.T.
Antony as accused 1 to 3 respectively (Ex. P-6). On September 29, 1998, the
DIG of Police who investigated Crime No. 268/97 filed interim report (Ex. P8) in the court of the Judicial First Class Magistrate, Kuthuparamba implicating
F
19 police officers including R.A. Chandrasekhar and fourteen constables who
are parties to these appeals.
At that stage three Writ Petitions - 0.P. No. 3408/98 by the Executive
Magistrate (T.T. Antony); O.P. No. 24401/98 by the Assistant Superintendent
of Police (R.A. Chandrasekhar) and O.P. No. 23702/99 by 14 constables
G (Damodaran and 13 others) - were filed in the High Court of Kerala praying
to quash the F.l.R. in Crime No. 268/97; alternatively for directing investigation
into the said crime by the C.B.I.
It is noticed that cases registered as Crime Nos. 353/94 and 354/94 of
Kuthuparamba Police Station which were mainly against the workers and
H DYFI (youth wing of CPI(M)) came to be closed as being false and undetected
- -~·
T.T. ANTONY v. STATE [QUADRI, J.]
951
some time in April 1999 and June 1999 respectively after the said Crime No. A
268/97 of Kuthumparamba Police Station was registered.
The learned Single Judge who dealt with the said O.Ps thought it fit,
having regard to peculiar facts and circumstances of the case, to have the
case re-investigated by the C.B.I. instead of quashing the FIR at the threshold
and accordingly disposed of the writ petitions on November 29, 1999. Against B
the said judgment of the learned Single Judge, six writ appeals were filed -
three by the said writ petitioners and three by the State of Kerala. A Division
Bench of the High Court, by its judgment dated February 29, 2000, confirmed
in part the order of the learned Single Judge in regard to quashing the FIR
in the said Crime No.268/97 ofKuthuparamba Police Station by ordering that C
as against the Assistant Superintendent of Police the FIR be quashed; however,
it directed a fresh investigation by the State Police headed by one of the three
senior officers named in the judgment instead of a fresh investigation by CBI.
Dissatisfied by the said judgment of the Division Bench, the appellants
preferred the above-mentioned appeals.
Mr. R.F. Nariman, the learned senior counsel appearing for the Executive
Magistrate, has argued that the allegations against him do not constitute any
offence; they relate to discharge of his official duties in evaluating the law
D
and order situation at Kuthuparamba in the following background : a mob of
about 2000 DYFI workers assembled in front of Town Hall, the venue of the E
Minister's programme, and on arrival of the Minister, the crowd surged forward
which prompted the Dy. S.P. and the police party under him, who were on
escort duty with the Minister, to lathi charge; the agitated crowd turned
violent and pelted stones at the police ~n.d motorcade of the Minister, set fire
the Government vehicles parked in the m:arby electricity office and indulged
in arson; on finding that both the lathi charge as well as tear gas shells failed F
to control the mob, he ordered the ASP to disperse the mob by resorting to
firing. It was pointed out that the Inquiry Commission also found that DYFI
had resorted to a very crude and uncivilized form of agitation. The said action
of the Executive Magistrate, it was submitted, being protected under Section
132 of the Code of Criminal Procedure, could never be termed as an offence G
so implicating him as an accused was wholly unjustified and illegal as such
criminal proceedings against him ought to be qtlashed. It was brought to our
notice that immediately after the police firing\ the appellant submitted a
complete report of the incident to the District Collfctor on November 26, 1994;
th,.e Additional District Magistrate and the S.P. had also sent their reports of
the incident. The Collector in tum reported the incident to the Government H
..
952
SUPREME COURT REPORTS
(200 I] 3 S.C.R.
'. A on November 27, 1994. It was highlighted that all the police personnel on duty
on the scene of occurrence were rewarded for their meritorious services and
the constables who were injured were paid Rs. 500 each ex-gratia. The wind
changed after the change in the Government; it resulted in arresting the said
Executive Magistrate on the charge under Section 302 of Indian Penal Code
B and shielding the S.P. who also ordered firing which caused the death of five
persons by charging him only under Section 201 I.P.C. as he turned an
approver. It is also submitted that the Executive Magistrate has been under
suspension from 1997 and thus lost one chance of promotion and if he is put
to the ordeal of trial on the basis of the final report submitted by the new
investigating team, which is a mere re-production of the first report, his career
C will be seriously. affected.
Mr. Mahendra Anand, the learned Senior counsel, has argued that out
of 350 police personnel deployed to take care of law and order in
Kuthuparamba, fourteen constables for whom he is appearing, are arbitrarily
booked under Section 302 read with Section 34 l.P.C.; they were under the
D leadership of the ASP and obeyed his orders; the criminal proceedings against
bim were quashed by the Division Bench of the High Court on the ground
that he was exonerated by the Commission of Inquiry; all those reasons which
justify quashing of the proceedings against ASP should equally apply to
them and therefore as against them also the proceeding should have been
E quashed. The constables, it is submitted, were given cash award for good
performance of their duties during very difficult situation by the then
Government but after the change of the Government they are made to face
the trial when indeed there could be no case against them in view of Sections
76 and 79 l.P.C. and that their action cannot be termed as offence much less
murder under Section 302 I.P.C. The investigation has proceeded with preF determined conclusions; the FIRs which were lodged on the date of the
occurrence (FIR Nos. 353/94 and 354/94) against DYFI, the workers and the
leaders of CPI(M), were reported as false and got closed on their coming into
power subsequently; the SP who was in overall charge of the law and order
and who ordered firing which resulted in the death of five persons turned
G approver giving statement contrary to the report submitted by him earlier, is
charged only under Section 2011.P.C. but on the basis of tainted investigations
the constables are charged under Section 302 I.P.C. It is further submitted that
to concoct the· evidence against the appellants-accused, two special
prosecutors have been appointed to assist the investigators. The alternative
contention urged on their behalf is that as on the face of it the investigation
H has not been fair and impartial and is also vitiated by ma/a fide and irregularity,
...
......
T.T. ANTONY v. STATE [QUADRI, J.]
953
fresh investigation by CBI may be ordered .
A
The learned Solicitor General appearing for the State of Kerala has ·
contended that when the Division Bench suggested that a fresh team should
investigate the crime, none of the accused objected to that course of action
on June 29, 2000; the new team after due investigation filed the final report
in the court of the Magistrate and it is only thereafter that this Court passed B
interim order on July 24, 2000, therefore, they cannot be permitted to challenge
the report in this court or seek direction for fresh investigation by CBI; as
the FIR discloses a cognizable offence, no challenge against investigation
into the offence is permissible. The FIR, it is submitted, is not necessarily
1
against an offender but is in respect of an offence which is cognizable and C
requires investigation and collection of evidence by the investigating agency.
Both the learned Single Judge as well as the learned Division Bench of the
High Court did not find any ma/a fide intention in filing the FIR; they took
note of the fact that the FIR was lodged on the basis of findings recorded
by the Inquiry Commission that the firing was unjustified, therefore, there
could be no interference with the investigation by the police in view of the D
guidelines laid down by this Court in Bhajan Lal's case. Inasmuch as after
investigation the final report has been filed and the learned Magistrate has
taken cognizance and issued summons, the trial court can consider the pleas
of the accused under Section 227 of Cr.P.C. but at this stage neither the
investigation can be challenged in these appeals nor can the sufficiency of £
the evidence be gone into by the High Court/the Supreme Court except to see
whether a cognizable offence has been disclosed. Insofar as the appeal
against quashing of criminal proceedings against the ASP by the Division
Bench is concerned, it is contended that the reasons given by the High Court
are untenable. It is submitted that the order directing firing at the mob was
unjustified as the crowd was not violent; there was no danger to the life of F
the Minister as the crowd had withdrawn from the Town Hall and that the lathi
charge and the firing started by the escort police party headed by Dy. SP
without lawful orders from competent authority; the escort party left the
Minister and went far away to the area under the control of the ASP who did
not prevent the escort party from resorting to unjustified and unlawful firing G
on the crowd and that the ASP himself also ordered firing on peaceful crowd
of people. The learned Solicitor General urged that the facts disclosed in the '
investigation showed complicity of ASP in the crime but as the criminal
proceedings against him were quashed by the Division Bench of the High
Court, the material could not be referred to in the final report nor could he.
be included in the array of the accused. It is argued that the Commission of l-I
--y-
'
954
SUPREME COURT REPORTS
[200 I] 3 S.C.R.
A Inquiry has no judicial powers and its report is purely recommendatory and
not effective proprio vigore and that the findings of the Commission have
...
also no evidentiary value, hence the accused persons cannot claim to be
)-..
exonerated on the basis of its findings particularly when, in the investigation,
'
sufficient material has come to light pointing to the involvement of Deputy
B
SP, ASP and others. As none of the requirements for quashing the investigation
is present, submits the learned Solicitor General, the High Court erred in
interfering with the investigation of the cognizable offence by quashing the
proceedings against the ASP.· It is argued that the High Court committed a
serious illegality in coming to the conclusion that once the Government
x
accepts the Report of Commission, the investigating agency cannot give a go
....
c by to it and failed to notice that the role of the Government in any investigation
is only supervisory and it cannot dictate either the mode or the outcome of
the investigation, therefore the investigating agency rightly conducted
investigation uninfluenced by acceptance of Commission's report by the
...
Government. Regarding the Executive Magistrate, it is submitted, that he is
D
a party to the conspiracy which resulted in the death of innocent persons and
that the legality of the FIR and the investigation cannot be challenged or
examined on the basis of disputed questions of fact in proceedings under
Article 226/227 of the Constitution. Inasmuch as in compliance with Section
132(1) Cr.P.C. sanction of the State Government has been obtained, the question
whether the Executive Magistrate is protected under Section 129 ofCr.P.C. is
E a matter of defence in the trial and cannot be gone into at this stage. With
regard to the police constables, it is contended that though they belong to
different groups, namely, 'escort' party and 'law and order' party they
subsequently merged into one group and resorted to indiscriminate firing; in
any event they are not entitled to the benefit of Section 132(2) of Cr.P.C. which
F
is applicable only to the armed forces; further the police constables who
participated in unjustified firing cannot be permitted to plead defence of
obedience to the order of the superior. It is argued that the material collected
in investigation reveals that the Dy. SP took rifle from one Abdul Salam to
whom it was officially issued and handed it over to Damodaran who had no
authority to use the rifle for firing thus he resorted to deliberate illegal firing.
--....
'
G The persons who fell to the shots and died were found to be far away from
the Town Hall, the place where the Minister was to address a meeting, which
shows that callous and indiscriminate firing was resorted to by the police in
-
violation of the guidelines in the Police Manual. It is fairly conceded by the
learned Solicitor General that if this Court is not inclined to interfere with the
)._
judgment under challenge in Chandrasekhar's case, the case of the constables
H cannot be dealt with differently. It is further submitted that no allegation was
y-
-4
T.T. ANTONY v. STATE [QUADRI, J.]
955
made against any of the members of the new investigating team; even in the A
~
appeal, there is no mention of any bias or malice against any of the officers
of the new investigating team, therefore, at this stage the plea for a fresh
investigation by a different agency, CBI, is not called for nor is it permissible
in view of the dictum of this Court in Chandrasekhar v. State of Kera/a,
[1998] 5 SCC 223. From the fact that the case diary runs into six volumes, B
submits the learned Solicitor General, it is evident that thorough investigation
has been made and at this stage no useful purpose will be served by directing
a fresh investigation by a new agency which will be a futile exercise. It is
"'
argued that by re-production of a portion of the report of the earlier investigating ,
""
team in the final report submitted by the new team, which deals with narration
of sequence of events, non-application of mind cannot be inferred.
c
At the re-hearing of the appeals, ·the learned counsel for the parties
addressed arguments on the question of the legality of the second FIR
registered as Crime No.268/97 and the investigation that followed it in respect ,
of the cognizable offence mentioned therein after about three years of the D
occurrence when in that regard two FIRs pertaining to two different places
were already filed and registered as Crime No. 353/94 and Crime No. 354/94
\
on the date of the occurrence - November 25, 1994 and the investigations in
those cases were pending. The learned counsel for the accused have argued
that registration of a fresh information in respect of the very same incident
as an FIR under Section 154 of Cr.P.C. is not valid, therefore all the steps taken E
pursuant thereto including investigation are illegal and liable to be quashed.
The learned Solicitor General countered them stating that no illegality can be
attached to the second FIR or the investigation made thereunder as nothing
prevented the investigating agency from making further investigation on the
basis of the first FIR in view of the subsequent information received and
F
forwarding a further report; at any rate, the objection is merely one of a form
and not of substance and it makes no difference so far as the final report is
concerned.
On these contentions, four points arise for determination:
(i)
whether registration of a fresh case, Crime No. 268/97, G
,..
Kuthuparamba Police Station on the basis of the letter of the
DGP dated July 2, 1997 which is in the nature of the second FIR
,J
under Section 154 of Cr.P.C., is valid and can it form the basis
J'
of a fresh investigation?
(ii)
whether the appellants in Appeal Nos. 689/2001 & 4066/2001 H
956
A
B
SUPREME COURT REPORTS
(200 I] 3 S.C.R.
(arising out of SLP(Crl.) 1522/00 and SLP(C) 8840/00) and
respondent in Appeal Nos. 690-691101 (arising out of SLP(Crl.)
Nos. 2724-25/00) have otherwiSe made out a case for quashing
of proceedings Crime No.268/97 Kuthuparamba Police Station ;
(iii) what is the effec't of the report of Sri. K. Padmanabhan·
Commission of Inquiry; and
(iv) whether the fac;ts and the circumstances of the case justify a
fresh investigation by .CBI.
As points (i) and (ii) are interconnected, it will be convenient to deal
C with them together. Inasmuch as the germane question relates to registration
of an F.l.R., we may usefully refer to Section 154 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) w?ich reads as under:
"15 4. Information in cognizable c.asesD
(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
E
sha 11 be entered in a book to be kept by such officer in such form
as the State Govern.111ent may prescribe in this behalf.
(2)
A copy of the info1mation as recorded under sub-section (1)
shall be given. forthwith, free of cost, to the informant.
F
(3) , Any person aggrieved by a refusal on the part of an officer in
charge of a police station to record the information referred to
in sub-section (1) may send the substance of such information,
in writing and by post, to the Superintendent of Police concerned
who, if satisfied that such information discloses the commission
of a·cognizable offence, shall either investigate the.case himself.
G
or direct an inv~stiga!ion to be made by any police officer
subordinate to him, in the manner provided by this Code, and
such officer shall have all the powers of an officer in charge of
the police station in relation to that offence.
Sub-section ( 1) o( Section 154 of Cr.P.C. contains four mandates to ao
H officer in-charge of a police station. The first enjoins that every information
~·
I
i
\.
~
J
T.T. ANTONY v. STATE [QUADRI, J.]
957
relating to commission of a cognizable offence if given orally shall be reduced A
to writing and the second directs that it be read over to the informant; the
third requires that every such information whether given in writing or reduced
to writing shall be signed by the informant and the fourth is that the substance
of such information shall be entered in the Station House Diary. It will be apt
to note here a further directive contained in sub-section ( 1) of Section 157 of B
Cr.P.C.