M. SUNDARAMOORTHY Vs. STATE OF KERALA

JUDGEMENT

(1.) In respect of an incident which occurred on 24/1/2011 in which one Saseendran and his two children were found hanging in their house the Palakkad, Cusba Police registered Crime No.35 of 2011 on 24/1/2011 at about 11.30 p.m (for short, "the first FIR") on the information given by the brother of the deceased Saseendran. He (not a witness to the incident) stated that Saseendran committed suicide after somehow killing the children. The police registered Crime No.35 of 2011 for the offence punishable under Sec.302 of the Indian Penal Code (for short, "the IPC") and under Sec.174 of the Code of Criminal Procedure (for short, "the Code") obviously attributing the offence under Sec.302 of the IPC to the said Saseendran for causing death of his children and Sec.174 of the Code for the said Saseendran committing suicide. The Circle Inspector, Cusba, Palakkad took up investigation of the case. The Circle Inspector recorded the statement of Teena, wife of deceased Saseendran and got it signed by her. On the strength of that statement the Sub Inspector, Cusba Police Station (Palakkad) registered Crime No.40 of 2011 on 2/2/2011 (for short, "the Second FIR") incorporating Secs.306 and 506(i) of the IPC and mentioning three persons as accused who include petitioner, Managing Director of the Malabar Cements Limited, Walayar (for short, "the MCL"). Petitioner seeks to quash the second FIR (Crime No.40 of 2011) to the extent it concerned him on various grounds, viz; that law does not provide for registering a second FIR once a case has already been registered in respect of the same incident, that registration of the second FIR is malafide and intended to falsely implicate petitioner and that at any rate, even if the allegations in the second FIR are accepted, that did not reveal any offence against petitioner punishable under Secs.306 or 506(i) of the IPC. Learned Senior Advocate appearing for petitioner has contended that on the above grounds the second FIR is liable to be quashed. It is also pointed out by learned Senior Advocate that this Court vide judgment dtd. 29/1/2011 in W.P(C).No.3477 of 2011 has directed that investigation of the case be handed over to the Additional 4th respondent (for short, "the CBI") which is to investigate the case after registering a case and in the circumstances quashing the second FIR against petitioner would not mean that after proper investigation is conducted, the CBI is forbidden from submitting appropriate report in Court implicating petitioner also as accused. In the circumstances the second FIR against petitioner is liable to be quashed. Learned Senior Advocate has placed reliance on the decisions in State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors. (AIR 1992 SC 604) and in particular the guidelines prescribed in paragraph 108(1) and (7), Antony Vs. State of Kerala (2001(3) KLT 1), Amalendu Pal @ Jhantu Vs. State of West Bengal (2010(1) SCC 707) and Gangula Mohan Reddy Vs. State of Andhra Pradesh (2010(1) SCC 750). Learned Additional Director General of Prosecution (for short, "the ADGP") who appeared for respondents.1 to 3 contended that the first FIR was registered on the information given by the brother of deceased who is not a witness to the incident and on the materials supplied by him but in the course of investigation the investigating agency learnt involvement of petitioner and two others in the incident from the statement of the wife of the deceased Saseendran based on which the second FIR was registered. According to the learned ADGP, registration of a second FIR is not prohibited under law. At any rate it is possible that the two FIRs could be clubbed together. Reliance is placed on the decision in C.Muniappan and Ors. Vs. State of Tamil Nadu (2010(9) SCC 567), paragraph 37 to contend that there could be two FIRs and that clubbing of FIRs is possible. It is contended by learned ADGP that on the materials on record registration of the case against petitioner is justified. It is contended that the decisions in Amalendu Pal @ Jhantu Vs. State of West Bengal (supra) and Gangula Mohan Reddy Vs. State of Andhra Pradesh (supra) relied on by the learned Senior Advocate concerned correctness of conviction of accused for offences punishable under Sec.306 of the IPC. According to the learned ADGP, for the registration of a case it is sufficient that the investigating officer has reason to suspect from information received or otherwise involvement of petitioner and others. Learned Standing Counsel for the CBI supplementing the argument of learned ADGP contended that no interference is required and that involvement of petitioner and others would be investigated by the CBI to which the case has been handed over.

(2.) I shall first consider the argument advanced by the learned Senior Advocate that there could be no second FIR so far as facts of the case is concerned. It is pointed out that registration of the second FIR based on the signed statement of the wife of the deceased Saseendran is hit by Sec.162 of the Code in so far as the investigating agency, in the course of investigation could not have obtained a signed statement from a person who according to the investigating officer is acquainted with the facts of the case.

(3.) I stated the factual situation where two FIRs were registered. In Antony Vs. State of Kerala (supra) the Supreme Court held that there could be no second FIR in respect of the same incident and that only the first FIR on the first information regarding commission of the cognizable offence satisfied requirement of Sec.154 of the Code. It was held that there could be no second FIR and consequently and no fresh investigation on receipt of every subsequent information in respect of the same occurrence or incident, giving rise to one or more cognizable offences. There, in respect of the same matter, two incidents occurred at two different places at two times though, the same day. Two FIRs were registered. Thereafter, the State Government ordered a Judicial Enquiry and based on the report of the Judicial Enquiry yet another FIR was registered. That was challenged before the Supreme Court and it was held that registration of that FIR is illegal as an FIR had already been registered in respect of the same subject matter. The said decision was considered by a Bench of three judges of the Supreme Court in Upkar Singh Vs. Ved Prakash (2004(3) KLT 444). It was held referring to the decision in Antony Vs. State of Kerala (supra) in paragraph 18, that it is clear from the words emphasized in paragraph 27 of the decision in Antony Vs. State of Kerala (supra) that the Supreme Court in the said case had not excluded registration of a complaint in the nature of counter case from the purview of the Code and that in the opinion of the Supreme Court (in the latter case) the decision in Antony Vs. State of Kerala (supra) only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of the case, is prohibited under the Code because an investigation in that regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint and hence will be prohibited under Sec.162 of the Code. In Upkar Singh Vs. Ved Prakash (supra) reference was made to the decision in Kari Choudhary Vs. Mst. Sita Devi and Ors. (2002(1) SCC 714) and the observation in the said case was quoted with approval which is as under: