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

Citation: [2001] 3 S.C.R. 942

Court: Supreme Court of India

Bench: S.S.M. QUADRI, S.N. PHUKAN

Judgment text

' - 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. X... ~· i- Second FIR-Maintainability of-Held, there can be no second FIR in respect ofthe 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.

t Constitution of India, J950-Articles 226, 227 and J36-Statuto1y i power ofpolice 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 ofsecond FIR andfi·esh investigation pursuant thereto is beyond the purview ofsections 154 and 156 and amounts to abuse :. ';~ of process of statut01y power of investigation-Criminal Procedure Code, 1973-Sections 482, 154, 156. -! Commission oflnqui1y Act, 1952-Section 3(1)-Report ofCommission ofbiqui1y-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 ofin the context ofSection 154 ofCriminal Procedure ' Code. 1973.

During the Visit of a Minister belonging to ruling UDF Governm"ent of T. T. ANTONY v. STATE 943 -~ Kerala to Kannur District, violent demonstrations were held by members of 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, 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 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, ·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 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 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 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 . -. ;;.. ,.

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 ofopinion 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 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 > rt or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the fir~t information report and other )<(.

materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with ma/a fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge. " The above list, as noted, is illustrative and not exhaustive. . "--v- I 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) ofSection 173 Cr. P. C.

empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investiga\iob does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, Joi 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 cleady be beyond the purview ofSections 154 and 156 Cr. P. C. nay, a case of abuse of the statutory power of investigation in a given I case.

In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection wit~ the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or'final report under Section 173(2) ~as been forwarded to the Magistrate, may be a fit case for exercise of pow~r under Section 482 Cr. P. C. or under Article 226/227 of the Constitution. Coming to the facts of this case, which are not free from political overtones, the incident which gave rise to registering of FIRs, took place, on November 25, 1994 on the occasion of the visit of the Minister to Alakkandy Complex at Kuthuparamba, Tellicherry Road (KanP"r District) for inauguration of the evening branch of the Co-operative Urban Bank.

The events that developed there led to firing by police at two places - (i) in the vicinity of ·~· town hall for which FIR was lodged and Crime No. 353/94 under Sections 143, 147, 148, 332, 353, 324, 307 read with Section 149 IPC, Section 3(2Xe) ofP. D. P. P. Act and Sections 3 and 5 of Explosive Substances Act, was registered and (ii) in the vicinity ofthe Police Station, Kuthuparamba in respect ofwhich FIR was filed and Crime No. 354/94 ofKuthuparamba Police Station under Sections 143, 147, 148, 307 and 427 read with Section 149 IPC and Section 3(2)(e) of P. D. P. P. Act was registered. While the investigations on the basis of the said FIRs were pending, the report of Mr. K. Padmanabhan Nair, Inquiry Commission, was submitted to the Government.

On June 30, 1997, the Additional Chief J Secretary wrote to the Director-General of Police that the Government ~ad accepted the report of the Commission and directed that the legal action be taken against those responsible on the basis ofthe findings ofthe Commission. On July 2, 1997, the Director-General of Police, however, wrote to Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a senior officer. Two days thereafter, the Inspector General of Police added his own remarks - "firing without justification by which people were killed . amounted to murder" - and ordered the Station House Officer to register a case under the appropriate sections and forward the investigation copy of the FIR to the ·Deputy Inspector General of Police (North Zone) for urgent personal investigation.

On the date when the ·Additional Chief Secretary wrote to the Director-General of Police, the investigations initiated in the said two crimes relating to the same incident wefe in progress. The investigating agency should have taken advantage of the report of the Commission for a proper further investigation into the case. Ori the facts which might come to light during investigation, if necessary, the investigating agency should have altered the offences under appropriate section of the relevant Acts and concluded the investigations. In view of the orders of the Director General of Police to register a case and on the further direction of the Inspector General of Police, the officer in-charge of Police Station registered Crime No. 268/97 of Kuthuparamba Police Station.. A cornparison and criticai examination of the FIRs in Crime Nos. 353 & 354 of 1994 on one hand and FIR in Crime No.

268/97 on the other, discloses that the date and place of occurrence are the same; there is alluding reference to the deaths caused due to police firing in the FIRs in Crime Nos. 353 and 354 of 1994. In any event, that fact was evident on the scene of occurrence. The narration of events, which we need not repeat here, are almost the same. The additional averments in Crime No. 268/97 are based on the findings in the report. of the Commission. Having regard to the test laid down by this Court in Narangs' case (supra), with which we. are in respectful agreement, we find that in truth and substance the essence of the offence in Crime Nos. 353 and 354of1994 is the same as in Crime No. 268of1997 ofKuthuparamba Police . ' Station. In our view, i~ 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 Secre. tary 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 ~o the incident ofNovember 25, 1994 at Kuthuparamba was registered again under Section . 154 ofCr. 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. Oft that date the investigations in the earlier cases (Crime Nos. 353 and 354of1994) were pending. The correct course of action should have been to take note of the findings and the contents of the repoi;t, 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 $ection 173(8) Cr. P. C. to the c<:mcemed Magistrate.

The course adopted in this case, namely, the registration of the information as the secon. d FIR in regard to the same incident and making a fresh investigation is nc'. it 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. f Regarding point No. 3, the principles as to the position of Commissioh of Inquiry appointed under the Commissions of Inquiry Act, the report and finding recorded by the Commission are too well-settled to admit of any elaborate discussion except to reiterate them here.

As long back as in 1904, the Privy Council in Re: Maharaja Madhava Singh, [31 Indian Appeals 239 (PC)] laid down, "... . it is sufficient to say that the Commission in question was one appointed by the Viceroy. himself for the information ofhis own min4, in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity, and was not in any sense a Court..... ". A Division Bench of the Nagpur High Court in M. V. Rajwade, J. A. S. , District Magistrate v. Dr. S. M. Hassan & Ors. , AIR (1954) Nagpur 71 following the said judgment of the Privy Council, held that the Commission was a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature and that findings of the Commission ofInquiry were not definitive like a judgment.

It was also pointed out that there was no accuser, no accused and no specific charges for trial; nor was the Government, under the law, required to pronounce, one way or the other, on the findings of the Commission. That judgment was approved by various judgments of this Court. / In Shri Ram_Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors. , [1959] SCR 279, a Constitution Bench of this Court while considering the constitutional validity of the Commissions of Inquiry Act, indicated that the Commission is merely to investigate, record its findings and make its recommendations which are not enforceable proprio vigore and that the inquiry or report cannot be looked upon as judicial inquiry in the sense of its being an exercise of judicial function properly so called.

The recommendations of the Commission ofInquiry are ofgreat importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view.

It would be appropriate to notice the following observations of the Constitution Bench : "But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statefuent made by any person before the Commission of Inquiry is, under section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission ofInquiry making recommendations for taking any action "as and by way of securing redress or punishment" which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, ifany, has to be imposed by a court oflaw properly constituted exercising its own discretion on the ·facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be. " In State ofKarnataka v.

Union ofIndia and Anr. , [1977] 4 SCC 608, the observations referred to above were approved by a seven-Judge Bench of this Court. In Sham Kant v. State ofMaharashtra, [1992] Suppl. 2 SCC 521, it was held that the findings of the Inquiry Commission would not be binding · on the S~preme Court. There, the question was whether an undertrial died due to injuries sustained by hini. in police custody. The report of the Commission of Inquiry mentioned that the injuries possibly might have been sustained by him even prior to his arrest. In the appeal arising out of conviction and sentence of the concerned police officer, this Court, on material before it, found that the victim died on account of ill treatment meted out by the police and held that the findings of the Commission would not bind this Court. : It is thus seen that the report and findings of the Commission ofInquiry are meant for information of the Government.

Acceptance of the report of the Commi~sion by the Government would only suggest that being bound by the R~le of law and having duty to ~ct fairly, it has endorsed to act upon it. The duty of the police - investigating agency of the State - is to act in accordance / with the law of the lang. This is best described by the learned law Lord --Lord Denning - in R. v. Metropolitan Police Commissioner, (1968) 1 All E. L. R. 763 at p. 769 observed as follows : "I hold it to be the duty of the Commissioner ofPolice, as it is ofevery chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

" Acting thus the investigating agency may with advantage make use of the report of the Commission in its onerous task ()f investigation bearing in mind that it does not preclude the investigating agency from forming a different opinion under Section 169/170 ofCr. P. C. ifthe evidence obtained by it supports such a conclusion. In our view, the Courts civil or criminal are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. For the aforementioned reasons, the registration of the second FIR under Section 154 ofCr. P. C. on the basis of the letter of the Director General of Police as Crime No. 268/~7 of Kuthuparamba Police Station is not valid and consequently the investigation made pursuant thereto is of no legal consequence, they are accordingly quashed. We hasten to add that this does not preclude the investigating agency from seeking leave of the Court in Crime No.

353/94 and Crime No. 354/94 for making further investigations and filing a further report or reports under Section 173(8) of Cr. P. C. before the competent Magistrate in the said cases. In this view of the matter, we are not . inclined to interfere with the judgment of the High Court under challenge insofar as it relates to quashing of Crime No. 268/97 of Kuthuparamba Police Station against the ASP (R. A. Chandrasekhar); in all other aspects the impugned judgment of the High Court shall stand set aside. On this conclusion it is unnecessary to deal with the other aspects of the case including the fourth point, namely to direct investigation of the case / by the C. B. I. Criminal Appeal No. 689 of2001 [arising out ofSLP (Crl. ) No. 1522/2000] A and Civil Appeal No. 4066 of2001 [arising out ofSLP(C) No. 8840/2000] filed by . the appellants [T. T. Antony and Damodaran P. & Ors. respectively] are allowed. Criminal Appeal Nos. 690-91 of2001 [arising out ofSLP(Crl. ) Nos.

2724- 25/2000] filed by the State of Kerala are dismissed. B S. VK Criminal Appeal No. 689/2001 allowed. C. A. No. 4066/2001 allowed. Crl. A. Nos. 690-91/dismissed.