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No second FIR in same offence

Shivendra Pratap Singh

Advocate

01/12/2016

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No second FIR in the same offence, same incident or same occurrence. The code of criminal procedure does not allow to register more than one FIR in respect of same offence. If accused has committed more than one offences in the same transaction still there should be one FIR. Second or subsequent FIR is permissible where version of second FIR is different.

In Babubhai vs. State of Gujarat and others (2010) 12 SCC 254 the supreme court has held that in case of subsequent FIR the court has to examine the facts and circumstances of both FIRs. If court finds that second FIR relates to same offence, same occurrence, or part of same transaction then second FIR should be quashed.

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 counterclaim, investigation on both the FIRs has to be conducted.

Babubhai vs. State of Gujarat and others (2010) 12 SCC 254

When does second FIR permissible?

Second FIR is permissible in discovery of new facts. When investigating officer finds larger conspiracy which was not surfaced during the investigation of first FIR then he can proceed to lodge second FIR. Discovery of new facts should form the factual foundation of the second FIR. If investigating officer did irregularity in the previous investigation and left out vital evidence then he cannot lodge second FIR merely on discovery of new facts.

In Nirmal Singh Kahlon vs. State of Punjab (2009) 1 SCC 441, the supreme court has held that “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.”

In T. T.Antony v. State of Kerala 2001 SCC; the supreme court has held that second FIR in respect of same offence is not permissible. Second FIR is permissible when the offence does not fall within the ambit of first FIR.

Sameness of offence is a mixed question of law and fact. The court should examine the sameness on the merits of each case. When court finds that scope of investigation entirely different from the first FIR then it can allow to conduct investigation on the basis of second FIR.

Quashing of second FIR

Where substance of allegations in second FIR is not different from the first FIR the court should quash the second FIR under section 482 of the code of criminal procedure (crpc). In Prem Chand Singh vs. State of Uttar Pradesh and another (2020) 3 SCC 54 the supreme court has held that if the sub­stratum of the two FIRs is common, the proceedings consequent to the second FIR would be unsustainable.

If there is more than one FIR in same offence then aggrieved person should approach the High Court under section 482 of crpc for quashing of subsequent FIR. He has to prove that:

  1. second FIR relates to the same incident.
  2. foundation of both FIRs is same.
  3. there is no entirely distinct occurrences.
  4. second FIR does not satisfy the test of sameness.

Lodging of two first information reports are not permissible in crpc hence, the High Court will quash the subsequent fir on above grounds. The investigating officer has option to conduct further investigation if he finds new facts. He can produce supplementary charge sheet in section 173 crpc. So, no need to lodge second FIR in the same offence. This is abuse of process of law hence, the High Court may exercise its inherent power and quash the second FIR.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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