top of page

Subsequent FIRs would be treated as statements under Section 162 of the Criminal Code: SC reiterates

Lastly, we would also like to clarify that Section 179 of the Criminal Code permits prosecution of cases in the court within whose local jurisdiction the offence has been committed or consequences have ensued. Section 186 of the Criminal Code relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR Writ Petition (Criminal) No. 160 of 2020 Page 125 of 128 that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused. We have clarified the aforesaid position to avoid any doubt or debate on the said aspect(Para.84).



AMISH DEVGAN Vs UNION OF INDIA AND OTHERS

WRIT PETITION (CRIMINAL) NO. 160 OF 2020

DECEMBER 07, 2020

The Hon’ble Supreme Court Justices A.M. KHANWILKAR and SANJIV KHANNA rejected the prayer of Amish Devgan (petitioner) for quashing of the FIRs which were registered against him as he remarked against Pir Hazrat Moinuddin Chishti.


Amish Devgan, a journalist who is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited hosts and anchors debate shows ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz. The petitioner had hosted and anchored a debate on the enactment which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. It is stated that the petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam badle”. Translated in English, this means,

“Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came - thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.


Court examined

"D. The second prayer – multiplicity of FIRs and whether they should be transferred and clubbed with the first FIR registered at P.S. Dargha, Ajmer, Rajasthan "


This act of the Petitioner was opposed by the states of Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the private respondents. Multiple FIRs relating to the same broadcast were registered in these states.


The Petitioner contends that multiple FIRs arising out of the same incident are abuse of law, and violates the fundamental rights and freedom of press, causing a chilling effect on the freedom of speech and expression.


The Hon’ble Supreme Court observed the following decision made in TT Antony v. State of Kerala, which was mentioned in Arnab Ranjan Goswami’s,

“20…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.”


The Court held that “there can be no second FIR” where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences. This is due to the fact that the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the CrPC.


The court observed:

“18…AII other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. 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 scheme of CrPC.”



The decisions made in Upkar Singh v. Ved Prakash were also noted, in which it was stated that,

“11…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.”


In Babubhai v. State of Gujarat, it was held that the court has to examine the facts and circumstances giving rise to both the FIRs. 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. Therefore, the test to determine sameness of the FIRs where the subject matter of the FIRs is the same incident was mentioned in this case.


The Court further considered that, it would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. It would also reduce the difficulty of complainants in contesting the closure report before the Magistrate.


The Court decided to follow the ratio in T.T. Antony which is to the effect that the subsequent FIRs would be treated as statements under Section 162 of the Criminal Code and held that,

Lastly, we would also like to clarify that Section 179 of the Criminal Code permits prosecution of cases in the court within whose local jurisdiction the offence has been committed or consequences have ensued. Section 186 of the Criminal Code relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR Writ Petition (Criminal) No. 160 of 2020 Page 125 of 128 that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused. We have clarified the aforesaid position to avoid any doubt or debate on the said aspect(Para.84).


The Court rejected the prayer of the petitioner for quashing of the FIRs but has granted interim protection against arrest subject to his joining and cooperating in investigation till completion of the investigation. They have accepted the prayer of the petitioner for transfer of all pending FIRs in relation to and arising out of the telecast/episode to Ajmer. The Court also the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.


Thus, the writ petition and all pending applications were, accordingly, disposed of.



M.Nandhitha

Comments


Articles

bottom of page