Ashraf v. Abdu Rahman and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 22ND DAY OF JULY 2016/31ST ASHADHA, 1938** **Crl.MC.No. 3205 of 2016 () ---------------------------** **(CP 69/2015 of J.F.C.M. - II, PERAMBRA IN CRIME NO. 60/2015 OF PERUVANNAMUZHY POLICE STATION , KOZHIKODE)** ## **PETITIONER/DEFACTO COMPLAINANT:** **---------------------------------** **ASHRAF** **S/O. POCKER,** **AGED 40 YEARS, NADATHALACKAL HOUSE, KAYANNA P.O, CHEMBRA, MUKKALLI, KOZHIKODE** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/ACCUSED AND STATE :** **--------------** ## **1. ABDU RAHMAN** **S/O. KASIM, AGED 57 YEARS,EDATHIL HOUSE, MATTANOD P.O, CHEMBRA, PERAMBRA, KOZHIKODE DISTRICT 673 527** ## **2. SEBIR** **S/O. KUNHAMMED, AGED 24 YEARS, THIRUMANGALATH HOUSE, AAVADUKKA P.O, KOZHIKODE 673 528** **3. SUBAIR S/O. KUNHAMMED, AGED 25 YEARS, RESIDING DO** **4. THE SUB INSPECTOR OF POLICE PERUVANNAMUZHI POLICE STATION, KOZHIKODE 673 620** **5. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031** **Crl.M.C.No.3205/2016** **2** **6. SABIRA** **W/O. ASHRAF, NADATHALACKAL HOUSE,' MUKKALIL, KAYANNA P.O, KOZHIKODE 673 526** **BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/06/2016, THE COURT ON 22/07/2016 PASSED THE FOLLOWING:** ## **Crl.MC.No. 3205 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-----------------------** **A1 COPY OF THE FINAL REPORT** **A2 COPY OF THE FIRST INFORMATION REPORT** **CR** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.3205 OF 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of July, 2016 ## **ORDER** This petition is filed under Section 482 of Cr.P.C. to quash Annexure II First Information Report. 2. The relationship between the petitioner herein and his wife is not cordial rather a strained one. In the wedlock, there is a child namely Irfan aged only six years. Irfan sustained burn injuries as well as there is a case that he was assaulted. In respect of the said infliction of injuries, now there are two crimes registered upon the statements of the parents. Two different versions are before the Police. The version of the father of the child is that the injury is inflicted by the wife's relatives. The case of the wife is that it is inflicted by the father and his relatives. Place, time and accused are different as per the version. On the crime registered upon the statement of the father, Police filed charge sheet citing the father and the child as witnesses. It is now before the Court of Sessions, Kozhikode as S.C.No.1116/2005. The Crl.M.C.No.3205/2016 2 crime registered by the Police on a complaint of mother forwarded under Section 156(3) of Cr.P.C. from court, Police conducted investigation and a statement of the victim under Section 164 of Cr.P.C. is seen recorded . The report submitted before this court by the Police shows that the stand of the police after investigation in the crime registered upon the complaint of the mother is that burn injuries were inflicted on the child by his father and his relatives. Father of the child is the petitioner herein. 3. When the petition came up for hearing, the learned counsel appearing for the petitioner submitted before me that there cannot be two FIR on the very same incident. Hence when thorough investigation was conducted and charge filed, the only option available will be a further investigation under Section 173(8) of Cr.P.C. The court erred in forwarding the complaint under Section 156 (3) of Cr.P.C. to the Police and further the Police erred in registering a crime upon the complaint as already an investigation was over and a report filed. 4. I have very carefully examined the police report in Crime Crl.M.C.No.3205/2016 3 No.60/2015 of Peruvannamuzhi police station wherein the petitioner is the informant. I have also perused the facts in Crime No.216/2015 of Peruvannamuzhi police station where the wife of the petitioner is the complainant. 5. On analysing the materials and facts before this court in respect of this petition, it can be seen that surely the subject matter is sustaining injury to the minor child Irfan. It is to be remembered that the child who sustained injury is a minor. Now, there are two versions before the police. On the basis of the two versions, two FIR is seen registered by the police. The case of the petitioner is that a thorough investigation in respect of the said subject matter was conducted by the police and thereafter alone report submitted. There is no question of a second investigation on a second FIR . 6. I have perused the memo of evidence pertaining to Crime No. 60/2015. As per the said document, the two witnesses who are seen cited by the police are the injured Irfan as well as the petitioner herein. The accused are one Abdu Rahman, Sebeer and one Subair. As per crime No. 216/2015 of the above said police station, the accused Crl.M.C.No.3205/2016 4 are Ashraf, Ebrahim, Assainar, Ummer and Kasim. Ashraf is none other than the petitioner herein. The Honourable Apex court in so many cases considered the propriety of registering two FIRs. The settled principle is that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same occurrence giving rise to one or more cognizable offence. In **Babunhai v. State of Gujarat and Ors [(2010) 12 SCC 254]** , the Apex Court held thus : _“Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In -Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer In - charge of the Police Station in respect of the same incident involving one or_ Crl.M.C.No.3205/2016 5 _more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C._ _In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and 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. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible._ _**In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.** ”_ 7. There cannot be any doubt regarding the power of the court to order further investigation. But when a different set of facts or Crl.M.C.No.3205/2016 6 allegations regarding the causation of injury on a minor came before a court and the place of incident is also allegedly different and distinct from the earlier one and more, **when the informant is the accused in the second version,** then the option available before the court by forwarding the complaint to the police to register a crime cannot be find fault with. Surely in respect of the causation of burn injury to minor Irfan, now there are two crimes registered. It cannot be said that any illegality is committed in sending the complaint to the police for registration of crime on the facts of this case. 8. A report of the Sub Inspector of Police, Peruvannamuzhy Police Station, shows that a statement of minor victim under section 164 of Cr.P.C. was recorded by JFCM I, Perambra in Crime 216/2015. A copy of the said statement is also produced for perusal of this court. I have perused the said statement. 9. The point to be considered is that whether the second FIR is to be quashed in this case. As there are two versions and alleged place of incident and time of incident are different and **when the** Crl.M.C.No.3205/2016 7 **informant/witness is the accused in the second version** , there is no illegality committed by the court in forwarding the complaint under section 156(3) to the police for registering the crime. If a final report is filed in Crime No.216/2015, it shall also be committed to the Court of Sessions, wherein SC. No.1116/2015 is now pending and both the cases shall be considered/tried by the same court as if it is a case and counter case. With the above direction, this Crl.M.C. is disposed of. Communicate a copy of this order to the concerned court. **K.P.JYOTHINDRANATH JUDGE** sv.