Malay Kumar Basu, J. - (1.) This revisional application is directed against the Baruipur P.S. Case No. 242 dated 10th August, 1995 under Sections 363 and 366 of the Indian Penal Code The case of the petitioner is that on 29th January, 1995 one Sarif Noor Islam lodged a complaint before the Baruipur Police Station being G.D. 1503/95 and in consequence thereof Nasiruddin Akhan, the petitioner No. 1 was arrested as an accused and was forwarded before the Court of S.D.M. where he was granted bail. Thereafter, the Investigating Police Officer carried on investigation into the allegations and submitted a final Report before the Ld. S.D.J.M. who accepted the same and passed an order discharging the said accused (petitioner No. 1), on 23rd March, 1995. But the said complaint subsequently lodged another complaint on the self-same allegations before the O.C. Baruipur Police Station and on the basis of that complaint Baruipur P.S. Case No. 242 dated 10.8.1995 under Sections 363 and 366 of the Indian Penal Code was started in connection with that case the investigating Police Officer made a prayer before the Court of Magistrate for a search warrant against the accused- petitioner No. 1 and the Ld. Magistrate allowed the prayer under Section 41 of the Criminal Procedure Code and the petitioner was directed to be produced. However the petitioner obtained an order of anticipatory bail from the Court of Ld. Sessions Judge. The petitioner has preferred this revisional application on the ground that filing of a second complaint on the self-same facts is an abuse of the process of Court and is illegal and cannot be tenable and the Police Officer is debarred under the law from starting a fresh investigation, when once there was investigation before hand into the very same allegations and the police submitted Final Report which was accepted by the Court and no Naraji petition was filed against that Final Report by the defacto-complainant and the accused was discharged. Hence this revisional application for quashing the said police case being Baruipur P.S. case No. 242 dated 10.8.1995 under Sections 363 and 366 of the Indian Penal Code Otherwise the petitioner will be subjected to double jeopardy.
(2.) Mr. Alquadri, Ld. Advocate, appearing on behalf of the O.P. State has argued that since it was a case of discharge of the accused and not acquittal, there is no legal bar in proceeding against him afresh and holding investigation on the second complaint particularly, when the Final Report submitted by the police at the first instance was of suspicious nature.
(3.) Mr. Rahamani, the Ld. Advocate, for the petitioners has relied upon a recent decision of the apex Court reported in AIR 2001 Supreme Court 2637. In this judgment Their Lordships have held as follows : "Apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police offer in charge of a police station is the First Information Report F.I.R. postulated by Section 154 of Criminal Procedure Code All 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 offer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Criminal Procedure Code 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 the Criminal Procedure Code The scheme of the Criminal Procedure Code is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Criminal Procedure Code on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Criminal Procedure Code as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Criminal Procedure Code However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of Sub-section (8) of Section 173, Criminal Procedure Code Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Criminal Procedure Code only the earlier or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154, Criminal Procedure Code Thus there can be no second FIR and consequently there can be no fresh investigation or receipt of every subsequently information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offence. One receipt of information about a cognizable offence or incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer-in-charge of a Police Station has to investigate not merely the cognizable offence report 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 of the Criminal Procedure Code Ram Lal v. State, 1979(2) SCC 322 , Disting and Explan. [Paras 18, 19] If the gravamen of the charges in the two FIRs the first and the second is in substance and truth the same, registering the second FIR are making fresh investigation and forwarding report under Section 173, Criminal Procedure Code will be irregular and Court cannot take cognizance of the same." Their Lordships further observed in this ruling that a just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173, Criminal Procedure Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to over or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2), Criminal Procedure Code It would clearly be beyond the purview of Sections 154 and 156, Criminal Procedure Code may, a case of abuse of the statutory power of investigation in a given case.";