It was in the 1979 case of Ram Lal Narang v Om Prakash Narang that an important aspect of the criminal procedure code relating to the permissibility of second FIR came into light. The case involved an incident wherein two FIRs had been lodged. The second FIR was lodged after receipt of fresh information and revealed a larger conspiracy. In the immediate case, the Court held that so as long as the conspiracies were not ‘identical’, second FIRs could be permissible. However this test was held to be subjective and had to be decided from a case-to-case basis.
Thus the case of Ram Lal Narang left the question of the permissibility of second FIR open to interpretation of different courts applying their discretion. Result of this subjectivity is a series of cases by different courts interpreting different sections of the Code to analyse whether second FIR can be permitted in the different fact situations.
What is an FIR?
FIR stands for First Information Report. Though the expression ‘FIR’ has not been defined in the Code it is generally understood to be the written document prepared by the police when they receive information about the commission of a cognizable offence, that is, offences in which the police may arrest without warrant and start investigation without any court orders. It is a report that is filed by any person, whether related to the victim or not.
The concept of an FIR and the procedure thereof is mentioned under section 154 of the Criminal Procedure Code, 1973. On receipt of information about the commission of any cognizable offence, the police has to follow the following steps-
- When such information is given orally, the police must write it down. Genuineness or credibility is not a condition precedent for registration of an FIR.
- The information after being written down has to be read over to the person filing the FIR, the same being a matter of right of the complainant.
- After information is recorded according to the above procedure, it must be signed by the person giving the information.
Thus an FIR is important to set the criminal justice system in motion.
What is a second FIR?
Second FIR as the name suggests is the FIR filed subsequent to the first FIR. It may relate to new facts about the cognizable offence mentioned in the first FIR, or disclose commission of another cognizable offence or point to a larger conspiracy or may be a rival account of the same incident. Thus the permissibility of second FIR is to be seen in all of these particular circumstances.
The judgments of various courts concerning second FIR can be divided into the following categories.
1) One set of judgments hold the view that if the two conspiracies are identical only then will a second FIR not be permitted
2) The most popular viewpoint on the issue is the view held in the case of T.T Anthony v State of Kerala. The case held that any second or successive FIR filed in connection with the same or connected cognizable offence is impermissible, if committed in the same transaction.
3) Cases that deal with whether after disposal of the 1st FIR, one can file a second FIR if new facts come to light
1. Identical conspiracy revealed by the second FIR
As stated above, in the 1979 case of Ram Lal Narang v Om Prakash Narang, two FIRs had been lodged with the first one being only a part of a subsequent larger conspiracy that was revealed after new and fresh evidence was brought on record. Some conspirators were common in both the FIRs however the object was not the same. The Court held that though there is no straightjacket formula, however if the two conspiracies are identical then the second FIR will not be permissible.
‘The test of sameness’ thus draws its roots from the above judgment. According to this test, if the conspiracy revealed by both the FIRs is one and the same thing then the second FIR is impermissible. Sameness with respect to the facts, the object of crime, the accused persons have to be compared.
2. Second or successive FIR filed in connection with the same or connected cognizable offence
This second point of view emerged in the case of T.T. Anthony v State of Kerala. The case broadened the scope of investigation and held that fresh investigation based on the second or successive FIRs will be permissible if it is-
- a counter case
- not committed in course of the same transaction in which the particular cognizable offence or any related offence mentioned in the first FIR has been committed
Moreover if, in respect of the first FIR, either investigation is under way or final report under section 173(2) has been forwarded to the Magistrate and then fresh information or evidence comes up, the Court held that in such situations section 482 CrPC or Articles 226/227 of the Constitution will be applicable.
Emphasizing that section 173(8) empowers the Investigation Officer (IO) to make further investigation, obtain further evidence and forward such report/s to the Magistrate, even after a report has been submitted to him, it was further held that in such a scenario, fresh investigation on receipt of new evidence or information will only be abuse of power of investigation given to the police under the Code. Therefore irrespective of the whether a final report has been filed under section 173(2) or not, the Code does not warrant subjecting a citizen each time to fresh investigation by the police.
The above case was further discussed and explained by the Supreme Court in 2004. It was held that the case of T.T. Anthony does not prohibit the registration of a counter complaint. It was laid down that any further complaint by the same complainant against the same accused subsequent to the registration of the first FIR is prohibited under the CrPC because-
- An investigation in this regard would have already started or completed
- Any further complaint against the accused will amount to an improvement on the facts mentioned in the original complaint hence would be in violation of section 162 CrPC which states that no statement made to the police during the course of investigation shall be signed by the person making the statement or be used as evidence. Thus any new information is prohibited to be made converted into an FIR and used as evidence or basis to prosecute the accused.
However, the above rule is not applicable in cases where there is a counter claim revealing rival versions of the same incident. In such cases, it is mandatory for the police to register both the versions of the complaint and carry investigation under both of them.
The above approach of the courts with respect to second FIR was summed up in the case of Babubhai v State of Gujrat. Elaborating on the importance of information received under section 154, the Court held that that FIR is the first information about the commission of a cognizable offence and sets the machinery of criminal law in motion. It leads to a formation of opinion either under section 169 or section 170 of the CrPC.
In such circumstances it is quite possible that more than one piece of information is given to the police. However the police is not mandated to enter all the details in the diary. It was held that all the information relating to a particular incident given to the police after commencement of the investigation will fall under statements made under section 162 CrPC. Thus new information on that offence or related offence shall not be reduced to a new FIR but the test of sameness laid down by the case of Ram Lal Narang , will be applied to decide the permissibility of the new information as a second (separate) FIR.
This view leads us to the question of whether there are any circumstances in which a second FIR will be permitted after the disposal of the first FIR. The Courts have dealt with this question in the cases of Udai Shankar Awasthy and Om Prakash Singh.
In 2013, the Hon’ble Supreme Court in the case of Uday Shankar Awasthy laid down certain parameters that had to be tested in deciding whether a second FIR is permissible after disposal of the first one. It said that second FIR shall be permissible even on the same facts provided-
- the earlier complaint has been decided on the basis of insufficient material
- the order has been passed without understanding the nature of the complaint
- the complete facts could not be placed before the Court
- where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour
However, if the first FIR has been disposed on full consideration of the complainant’s case on merit, the second FIR in such a case will not be maintainable.
In the recent case of Om Prakash Singh the apex Court held that where the appellant comes to know about certain facts after the disposal of the first complaint, there will be no bar for her to lodge a second complaint.
Conclusion and Analysis
The law on second FIR grew gradually with the Court putting various riders with each subsequent fact situation. Since the rulings emerge from the given circumstances of each case, there is lack of consistency and clarity in assessing the permissibility of second FIR. Moreover the tests devised allow wide subjectivity and discretion for instance the fact whether the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint are subjective and will cause a lot of hassle to the complainant to be able to file her FIR. Therefore amendment in the Code is to be preferred that guides the police officer to be able to make choice at the first instance with such decision being appealable.
ABOUT THE AUTHOR
Tanisha is a third-year B.A. LL.B. (Hons.) student at National Law University, Delhi. She is interested in Constitutional Law, Criminal Law and Commercial Law. Apart from this, she likes to read and write about society, politics and their interface with law. She can be reached at firstname.lastname@example.org.