AKBARUDDIN OWAISI V/S THE Govt. Of A.P. Rep., By its (Writ Petition No. 824 of 2013)

AKBARUDDIN OWAISI V/S THE Govt. Of A.P. Rep., By its (Writ Petition No. 824 of 2013)

Case Number	Writ Petition No. 824 of 2013
Case Type	Writ Petition
Court	High Court of Andhra Pradesh
Petitioner	Akbaruddin Owaisi
Counsel for Petitioner	Sri Md. Ismail and Sri Jangoji, Learned Counsel represented by S. Niranjan.
Respondents	The Govt. of A.P, rep., by its Principal Secretary, Home Department and Nine others. (Total of 11 Respondents)
Counsel for Respondents	Judgment Date
Bench/Coram	Hon’ble Sri Justice Ramesh Ranganathan.
Judgement Date	July 19, 2013.
Referred	Code of Criminal Procedure, 1973 –39,41A,154,154(1),156,156(1),156(3),157,162,173,177, 178,179,181,182,183,184,185,186,187,196,198,199,210,407,438,482Indian Penal Code,1860 – 121, 153, 153A, 295A

 FACTS OF CASE

• Several FIRs and complaints were lodged in different police stations/Courts against the present petitioner (then MLA of AP State) concerning two speeches delivered by him at public meetings in Nizamabad on 8.12.2012 and in Nirmal on 22.12.2012, alleging that petitioner had deliberately and maliciously intended to outrage religious feelings by insulting religious beliefs of others. And also, that he had abetted Muslims to waging war against the Government of India, resulting in public outcry.  

• The first was filed as Crime No.1 of 2013 by the 3^rd respondent on 02.01.2012 for offences under Sections 153, 153A, 295A IPC and by the 4^th respondent under Sections 153A, 121 IPC. Meanwhile a Private complaint was filed before IV Additional Chief Metropolitan Magistrate, Hyderabad by 9^th respondent under Section 156(3) CrPC. Also, a similar complaint was made by the 5^th respondent as Crime No.5 of 2013 under Section 153A IPC, and issued a notice to petitioner under Section 41A CrPC asking him to appear on 10.01.2013. 

• The submission made by the counsel of petitioner is that since the complaint was already registered as Crime No.1 of 2013 by 3^rd respondent, a second FIR in respect of the very same incident is barred, and, consequently, while investigation into Crime No. 1 of 2013 can be continued by the 3^rd respondent, Crime No. 5 of 2013 by the 5^th respondent must be quashed. Further relief sought through this petition includes a direction to the police officers not to register any further FIRs against the petitioner in relation to his speeches contending that registering multiple FIRs for the same incident to be arbitrary, irrational and violative of Article 14,19 and 21 of Indian Constitution.  

ISSUES

The issues considered and discussions raised in this petition are very important and deal with primal process of an investigation in a unique way and they are as follows,

1. Is registration of multiple FIRs in the same PS, for the same occurrence, barred under Section 154(1) CrPC?
2. Does registration of multiple FIRs for the same offence/incident violate the fundamental rights of accused? 
3. Is the ‘Test of sameness” satisfied in the two FIRs under the present case?
4. Does CrPC permit parallel and simultaneous investigations being conducted thereinto?
5. Can a Magistrate/SHO transfer a complaint registered in one PS to other for investigation even if both the PS’s have territorial jurisdiction? – is there any such provision in CrPC?

ANALAYSIS

Issue No.1 –

Sri S. Niranjan, Learned Counsel for petitioner, deducing the observation made by the Apex court in the case of T.T Antony, has contended that there cannot be a second FIR in respect of same cognizable offence and same incident in same P.S. 

According to declaration of law in aforementioned case, there is clear prohibition of two FIRs being registered under Section 154(1) CrPC for the same offence at same police station.

However, the Learned Counsel for respondent, would submit that there is no prohibition under the code for registering an FIR for the same incident in another police station, there is no bar to register a complaint when there is no dispute of territorial jurisdiction of both police stations.

The following are the cases where the rule, against registration of multiple FIRs for the same offence/incident, will not apply,

1. Where two FIRs are lodged in respect of the same incident having materially different allegations of commission of different cognizable offences.
2. where the FIRs are regarding independent and distinct offences, registration of a subsequent FIR cannot be prohibited on the ground that some other FIR had been filed against the petitioner in respect of other allegations made against him.
3. In respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the first FIR.
4. where the incident is separate and the offences are similar or different, or where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first.
5. Where several distinct offences/incidents have been reported. In such a case the investigating agency should issue separate FIRs under Section 154(1) CrPC
6. in cases where there are different versions, they are in respect of two different incidents/crimes, and when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage and can also surface in another proceeding. 
7.  even in cases where the first complaint is registered and investigation initiated, it is possible to file a further complaint based on the material gathered during the course of investigation.

Issue No.2 –

Sri S. Niranjan Reddy, Learned Counsel for petitioner, contended that registering a second complaint for same incident would violate a person’s right under Article 20(2) of the Constitution.

As the expression “prosecuted and punished” used in Article 20(2), also means and includes conduct of investigation, and hence, multiple FIRs meant multiple prosecutions, which in turn violate Article 21 of the Indian Constitution.

According to T.T Antony (supra), registration of a second FIR in the same P.S, in respect of same offence, is not only impermissible but also violates Article 21 of the Constitution.

However, the Learned Counsel for the respondent, submitted that every citizen who has knowledge of commission of a cognizable offence has the duty to lay the information before the police under Section 39 CrPC. Referring to Sections 198&199 CrPC, which relate to complaint filed by aggrieved persons, to contend that preventing a citizen, or an aggrieved person, from filing an FIR or a complaint would amount to denying his Constitutional right. Articles 14 and 21 of Constitution read with Section 154 CrPC makes it clear that, if a cognizable offence is not registered and investigated, it would result in violation of human rights.

Issue No.3 –

Sri S. Sriram, the learned Counsel for the respondent, has requested for the “Test of sameness” be applied, and only upon the finding that FIRs are same, would judicia intervention be justified.

It is found that both the complaints have common purpose and design and they relate to the same event, the cause of action is same, there is sameness of occurrence. Therefore, the Principle of “sameness” is attracted.

Issue No.4 – 

Sri S. Niranjan Reddy, Learned Counsel for the petitioner has invoked for the exercise of the inherent and extraordinary powers of High Court to quash the Subsequent FIRs either under Section 482 CrPC or Article 226 of the Constitution, ordinarily the power under Section 482 CrPC cannot be exercised to do something which is expressly barred in the code.

Although it does appear that the only remedy available under the code, where parallel investigations are being conducted upon consequent complaints being registered in different P.S is to invoke the jurisdiction of the High Court under Section 482 CrPC. In addition, the extraordinary jurisdiction under Article 226 of the Constitution would be available to have one of the complaints quashed or to have the complaint transferred from one P.S to another.     

Issue No.5 – 

Exercise of jurisdiction by High Court under Section 482 CrPC or Article 226, to transfer complaints from one P.S to another, presents several difficulties, if in case of arising of such problems, Section 186(b) CrPC may be considered to solve the deadlock as to which Court should try the case under such circumstances. 

Section186(b)- applies only when both cases are common and they arise out of the same occurrence, and the parties are same.    

Meanwhile, the Court deemed the submission of Sri. C. Subba Rao, Learned Counsel for respondent to be fit, to direct complete and comprehensive investigation of the cases to a single investigating agency. Since the statutory provisions are absent on these aspects, the court opined that, as CID is notified as one P.S for the entire State, it would suffice if both the complaints relating to the petitioner’s speech be transferred to CID.        

JUDGEMENT  

The High Court rejecting the plea of the petitioner to quash multiple FIRs against him, has disposed it by transferring both FIRs for Crime No.1 of 2013 at Nizamabad P.S and for Crime No.5 of 2013 at Osmania University P.S to the CID P.S forthwith. And thereof the CID P.S Station house officer shall register one of them as an FIR and treat the other as a statement under Section 162 CrPC. Also, the Hon’ble Justice did not concede to the request of petitioner to direct the police not to register any further cases.

CONCLUSION

The Apex court has made a concrete analysis of the issue from every dimension possible and has called for an urgent need for adequate provisions be made in CrPC, prescribing the procedure in cases where multiple complaints are registered in different police stations for the same offence/incident/occurrence, all of them having territorial jurisdiction to investigate the complaints. Especially with present technology explosion of this age and time, where with just one click anyone can access information across the length and breadth of the country, multiple complaints can be lodged in different police stations by different complainants for the same incident. The plight of such incidences is clearly increasing, with the same being used as a tool to harass the accused.  Appropriate legislation be made quickly to prevent misuse due to lack of adequate provisions and to ensure justice till the end. 

REFERENCES

https://indiankanoon.org

This Article is written by Abraham Dany Diana, first year student of Dr. B. R Ambedkar Law College, Andhra University, Intern at Legal Vidhiya.