Whether 2nd FIR maintainable

While on one hand the manner of recording of First Information Report (FIR) and the commission of offences revealing from FIR are take with caution and circumspection, the Supreme Court in a recent decision (Babubhai v. State of Gujarat) has approved the recording of more than one FIR in respect of same acts committed on the ground that the police is required to register the FIR on the basis of the information provided and that "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".

Making a reference to the earlier decisions of the Court on the issue, the Bench declared the position of law in the following terms;

12. In Ram Lal Narang Vs. Om Prakash Narang & Anr. AIR 1979 SC 1791, this Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of conspiracy in both the cases was not the same. This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible. 

13. In T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC 181, this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate 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 the Investigating Officer has to file one or more reports under Section 173 Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the Cr.P.C. The Court further observed as under:

“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 CrPC 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 one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.” 

14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292, this Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.

15. In Rameshchandra Nandlal Parikh Vs. State of Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not 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, there is no prohibition in accepting the second FIR.

16. In Nirmal Singh Kahlon Vs. State of Punjab & Ors. (2009) 1 SCC 441, this Court considered a case where an FIR had already been lodged on 14.6.2002 in respect of the offences committed by individuals. Subsequently, the matter was handed over to the Central Bureau of Investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries. The second FIR was lodged by the CBI. This Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated. The Court held as under:

“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.”

17. 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 Incharge of the Police Station in respect of the same incident involving one or 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.

Order 9 rule 8,9 CPC

8. Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Supreme Court: Can't sue lawyers for wrong advice

NEW DELHI: At a time when it is the norm to seek legal opinion prior to taking a decision, theSupreme Court has come to the rescue oflawyers by ruling that they cannot be prosecuted for rendering wrong advice if there is no link between them and perpetrators of a fraud or offence.

But the court said the advocate's opinion must be bona fide as all legal practitioners owe "an unremitting loyalty to the interests of a client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client".

A bench of Justices P Sathasivam and Ranjan Gogoi gave this judgment while dismissing the CBI's appeal against an Andhra Pradesh High Court order quashing criminal proceedings against an advocate for rendering legal opinion on genuineness of title deeds for sanction of loans, which resulted in a multi-crore loan fraud involving a nationalized bank.

Writing the judgment for the bench, Justice Sathasivam said, "Merely because his opinion may not be acceptable, he cannot be mulcted (punished) with criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence but cannot be charged for the offence under Section 420 (cheating) and 109 (abetment) along with other conspirators without proper and acceptable link between them."

The court drew a parallel between lawyers and other professionals like doctors and said none of them could guarantee success - either in litigation or in treatment.

"A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on," the bench said.

"The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect," the court said.

"Judged by this standard, a professional may be held liable for negligence on one of the two things - either he did not possess the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he possessed," it added.

Quoting an earlier judgment, the court said it was not necessary for every professional to possess the highest level of expertise in that branch which he practiced. It quoted another judgment of the SC, in which it had ruled that "mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct".

A Brief about Summons

A Brief about Summons
A Summon is a legal document/notice issued by the court which notifies the party in dispute to appear before the court on a date mentioned in the summon itself.
Section 62 CRPC shows hoe these summons can be served.
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

CRPC Ammendment on 498a

The CrPC amendments are the codification of the Indian Supreme Court’s orders on arrest and the procedures to follow upon arrests. I see the end of the 498A extortion industry.

Impact of Amendments:

(a) This amendment stops the police from making arbitrary arrests. The very fact that reasons shall have to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying the arrest. Recording an arbitrary reason would be difficult, since it would need to be substantiated and will also be open to judicial scrutiny. As a matter of fact, to have power to make an arrest is one thing, but to justify that arrest is something completely different. And it is precisely this gap which the amendment seeks to bridge.

(b) The amendment lays considerable stress on the importance of investigation before an arrest is made or not made. Which further means that the officer must be convinced about the bonafides of the case. A mere complaint would not be enough to exercise the power of arrest.

(c) Insertion of Section 41A, pertaining to issue of Notice of Appearance, is in line with the Right to Life and Liberty of Indian citizens. It would also help bring down the number of arrests, which in turn would decongest the crowded Indian jails. Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in false cases.

(d) System of Administration of Law and Justice would become more transparent. The amended CrPC Act together with the Right to Information Act (RTI) would be able to inject necessary checks and balances in the Process of Administration of Law in India. But then, a lot depends on how awakened the citizens are to their Right to Information.

kasab death sentence democratic

Everybody in India feels that the Kasab Judgement came too late after 4 yrs its too late.After spending 50 crores on his trial it is wrong and Indian government is not concerned about his death.Well the real truth is different from what people presuming.

Well Actually everybody in the nation is bounded by constitution and our constitution is supreme.Even the parliament is bounded by the constitution.If we really want to show the world that we are the true democracy and we really bounded by the constitution then we have to follow the guidelines setup by the constitution.

1. The Constitution under Article 14 guarantees the right to equality before the law.. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.

Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.

So in order to bring this fair trial first of all the proper Investigation took time roll of each of the accused and Kasab was taken on record and proper evidences were collected like as the case may be for any other form.

This took time every piece of information collected has to be in sync with charges framed,

2. Security of the accused was an Important factor as it was important to conduct fair trial so accused has to be in good medical condition.This amounts to money that was spent on Kasab.

3.We Know that Mumbai Attacks had an Impact on every Indian it was worst than 9/11Everybody is outraged that why so much amount of people money is spent on a person who killed thousands of people.So the Answer is that we are democratic nation but our actions should also be democratic Equal opportunity to everyone is our motto so why exclude Kasab. If we declare that give him death without any fair trial than we are actually contradicting our self.We would set an Example that we say we are democratic but do our action like dictatorship just like Pakistan than what would be difference between us and pakistan. We are a great nation that greatness should also be reflected on our actions this can only be achieved by following our constitution.

4. Section 374 of the Criminal Procedure Code, 1973 states that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him, may appeal to the High Court. Any person convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, may appeal to the Court of Session.

Any miscarriage of justice that demonstrates prejudice to the accused is a potential ground of reversal of the trial on appeal.However, any mistake which does not jeopardize the fundamental fairness of the trial is not grounds for reversal on appeal. By way of example, if a case which should have been tried as a warrant case is tried as a summons case (where the standards for recording of evidence are lower) there would be grounds for reversal, but the same would not be true in reverse. It the best practice to bring up irregularities as soon as possible during the case, rather than to present them on appeal. However, an appeal cannot be thrown out only because irregularities were not brought up during the original trial. Finally, a strong case for reversal on appeal would be if police discounted evidence which could have helped exonerate the accused.A full list of irregularities which do or do not overturn a trial on appeal are listed in the Cr.P.C.

If it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing an arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.Criminal charges may also be filed on the police for wrongful confinement.

In kasab case same thin happened so again it took time.

Again he has a Right to review petition and also clemency petition.

But in the end justice wins.