SECOND FIR WHEN PERMISSIBLE

SECOND FIR

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6198-6199 OF 2008

(Arising out of SLP (C) Nos. 24777 - 24778 of 2005)

Nirmal Singh Kahlon .... Appellant

Versus

State of Punjab and others .... Respondents

WITH

CIVIL APPEAL NOS. 6200-6201 OF 2008

(Arising out of SLP (C) Nos. 25226 - 25227 of 2005)

J.P. Singla and others .... Appellant

Versus

State of Punjab and others .... Respondents

(Also reported in 2009 Cri.L.J. 958 )

JUDGMENT

S.B. SINHA, J.

Leave granted.

Excerpts from the Judgement

xxx xxxx xxxx xxx

51. We may also notice that in H.N. Rishbud and Inder Singh v. The Stateof Delhi [1955 (1) SCR 1150] the appellant Rishbud was an Assistant Development Officer and another appellant Inder Singh was the Assistant Project Section Officer. A number of criminal proceedings were pending against them. The cases against them were that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually

obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock-holders of those articles. They were prosecuted under Sections 120B and 420 of the Indian Penal Code and Section 7 of the Essential Supplies (Temporary Powers) Act, 1947. The public servants were also charged with Section 5(2) of the Prevention of Corruption Act, 1947.

Whereas investigations in respect of Section 5(2) of the Prevention of Corruption Act were required to be made by a police officer not below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the First Class, investigations under other provisions were not. Therein, the FIRs were lodged in April and June, 1949 but permission for investigation as against the public servants by a police officer below the rank of Deputy Superintendent of Police was given in March and April, 1951.

The question which arose for consideration therein was whether the chargesheets filed in those cases were illegal. This Court examined the scheme of the Code to hold :-

"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading

"Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial..."

52. Yet again, in Upkar Singh v. Ved Prakash and Others [(2004) 13 SCC 292], a Three-Judge Bench of this Court held:

"21. From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible."

53. If, in a situation of this nature, lodging of the second FIR was not impermissible in law, the main plank of submission of Mr. Rao that whereas in terms of Section 173(8) of the Code of Criminal Procedure further investigation is permissible, re-investigation is not, takes a back seat.

54. The question can be considered from another angle. If the State has the ultimate supervisory jurisdiction over an investigation for an offence and if it intends to hand over a further investigation even after filing of the chargesheet, it may do so. However, it appears from the records that those officers including the Chief Secretary who were dealing with the public interest litigation were not aware that the chargesheet had been filed in the earlier case. The State Government and the High Court had proceeded on the basis that the investigation was to be handed over to the CBI. The High Court came to know thereof only when an application for modification was filed by the appellants therein. It may be true that the High Court proceeded on the basis that although the CBI had lodged the FIR, the same would be deemed to have been lodged only for the purpose of carrying out further investigation, but, in our opinion, for the views we have taken, its conclusions are correct.

55. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3.04.2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end after the chargesheet is filed, as has been held by this Court in Vineet Narain (supra) and M.C. Mehta (Taj Corridor Scam) v. Union of India and Others [(2007) 1 SCC 110], loses all significance.

56. Moreover, it was not a case where the High Court had assumed a jurisdiction in regard to the same offence in respect whereof the Special Judge had taken cognizance pursuant to the chargesheet filed. The chargesheet was not filed in the FIR which was lodged on the intervention of the High Court.

As the offences were distinct and different, the High Court never assumed the jurisdiction of the Special Judge to direct reinvestigation as was urged or otherwise.

57. The Act is a special statute. By reason of the said enactment, the CBI was constituted. In relation to the matter which were to come within the purview thereof, the CBI could exercise its jurisdiction. The law and order, however, being a State subject, the CBI derives jurisdiction only when a consent therefor is given by the statute. It is, however, now beyond any controversy that the High Court and this Court also direct investigation by the CBI. Our attention has been drawn to the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power

of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following:

"(a) Prime Minister of India

(b) Cabinet Ministers of Government of India/

Chief Ministers of State Governments or

their equivalent

(c) The State Governments

(d) Supreme Court/ High Courts"

The CBI Manual having been framed by the Union of India, evidently, it has accepted that reference for investigation to the CBI may be made either by this Court or by the High Court.

58. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by itself would not render the investigation carried out by it to be wholly illegal and without jurisdiction as assuming that the reference had been made by the High Court in exercise of its power under Article 226 of the Constitution of India in a public interest litigation, the same would also be valid.

59. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/ or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.

60. An order of further investigation in terms of Section 173 (8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision.

Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409], correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.

The ratio laid down in A.S. Peter (supra) (wherein one of us was a member), to which reliance has been placed by Mr. Rao should be considered from that angle.

61. Contention raised that the investigating officer appointed by the CBI would not be a superior officer in rank to the police officer of the State Government in terms of Section 36 of the Code of Criminal Procedure may not detain us in view of our findings aforementioned.

We may, however, observe that the State as in terms of the provisions of the Code and the Act exercises two different and distinct jurisdictions. The power of supervision over investigation vested in the State in terms of Section 3 of the Police Act, 1861 is absolute. It may in a given case having regard to the nature and complexity of the offence may also direct that further investigation in the matter may be carried out by a central agency. The State in terms of the special statute, viz., the Act can always request the CBI to make an investigation / further investigation. The said power of the State is wholly unrestricted by Section 36 of the Act or otherwise. As a logical corollary if while making preliminary inquiry pursuant to the notification issued by the State in terms of Section 6 of the Act, the CBI comes to know of commission of other and further offence involving a larger conspiracy which required prosecution against a large number of persons who had not been proceeded against at all by the local police officers, we are of the opinion that even lodging of second FIR would not be a bar.

62. If lodging of the second FIR is legally permissible, only because the same has been done at the instance of the High Court could not lead this Court to arrive at a conclusion that its direction in that behalf was wholly without jurisdiction. It will bear repetition to state that law as it stands permits the High Court and this Court to direct investigation made by the CBI. As indicated hereinbefore, it is also recognised by the Central Government, as would appear from the provisions of the CBI Manual referred to hereinbefore.

63. We must, however, not lose sight of the fact that before the High Court it was the State Government who stated that it would like to get the scam investigated by the CBI. The direction was issued only in view of the said offer and not de'hors the same.