Second FIR Not Barred If Allegations Are Substantially Different: Kerala HC

While ruling on one of a very significant legal intricate topic pertaining to second FIR, we must note with full attention that the Single Judge Bench comprising of Hon’ble Mr Justice PG Ajithkumar of Kerala High Court in a very remarkable, relevant, robust and recent judgment titled M Mohammed Kunhi vs State of Kerala in Crl.Rev.Pet No. 355 of 2019 against the order dated 04.12.2018 in CMP No.6734 of 2017 in CC 2339/2015 of Judicial Magistrate of First Class -I, Hosdrug Crime No.91/2015 of Hosdurg Police Station, Kasargod and cited in Neutral Citation No. : 2023:KER:76176 that was pronounced as recently as on December 1, 2023 has minced just no words to observe unequivocally that a second FIR is not barred if allegations therein are substantially different from the first one. It must be disclosed that in this leading case we see that the Trial Court had dismissed the petition that had been filed by the accused for discharge observing that they failed to establish sameness of two FIRs. It must be noted that the High Court was considering the revision petition that had been filed against this order. Consequently, we see that the Court had deemed the second FIR valid.

It also deserves mentioning here that this criminal revision petition No. 379 of 2019 had come up for hearing on 15.11.2023 along with Crl.Rev.Pet.355/2019. The Bench had minced just no words to hold that, "If both the FIRs are with the same set of allegations and the offences constituting from the allegations are the same, the second FIR and the proceedings following such second FIR are illegal. If there is no sameness, if the nature of allegations and the facts involved and also the persons aggrieved are different, the bar would not be applied." The Court thus held clearly in this leading case that the allegations in the two FIRs are substantially different and that the complainants and accused are not all common. Therefore, the Court noted that two FIRs are not based on the same incident and that the second FIR is not illegal. Accordingly, we thus see here that the Court dismissed the revision petition filed by the petitioner.

To put things in perspective, the Bench while dwelling on the facts of this case envisages in para 1 that, "Sri.U.Raghavan, son of Kannan, Kunnummel, a retired teacher expired on 28.08.2003. He had 22 cents of land comprised in resurvey No. 291/3-C of Balla Village. Sale Deed No.359 of 2007 alienating the said property was executed on 05.07.2007 in the name of Sri.U.Raghavan. It was in favour of Smt.Gracy Jacob. Her husband is a witness in that document. Subsequently, the said property was alienated in favour of Sri.Muhammed Kunhi. He in turn executed sale deed No.4673 of 2009 on 30.10.2009 alienating the said 22 cents of land in favour of Sri.V.Hashim. Alleging that Sri.Mohammed Kunhi, knowing fully that the property belonging to Sri.U.Raghavan was got transferred by forging a sale deed by impersonation, he had executed sale deed in favour of Sri.V.Hashim and received an amount of Rs.22 lakhs. With the said allegations, Sri.V.Hashim filed a complaint before of the Judicial Magistrate of the First Class-I, Hosdurg alleging offences punishable under Sections 419, 420, 465, 467, 468, 471 and 120B read with Section 34 of the Indian Penal Code, 1860 (IPC). The complaint was forwarded to the Hosdurg Police Station, which followed an investigation and filing of the final report against all the four persons aforementioned. On taking cognizance, all the four accused were summoned. The accused entered appearance and filed C.M.P.No.6734 of 2017 seeking discharge. That petition was dismissed by the court below as per the order dated 04.11.2018. The said order is under challenge in these revision petitions."

As we see, the Bench discloses in para 2 that, "The 4th accused filed Crl.R.P.No.355 of 2019. Accused Nos.1 and 2 filed Crl.R.P.No.379 of 2019. Accused No.3 is no more."

Do note, the Bench notes in para 4 that, "The 1st accused is Smt. Gracy Jacob in favour of whom the first sale deed namely, document No.359/2007 was executed. Her husband, who attested the sale deed and identified the executant who allegedly impersonated late U. Raghavan, before the registering authority is the 2nd accused. The scribe of the document is the 3rd accused. The 4th accused is Sri.Mohammed Kunhi, who purchased the property from the 1st accused and later alienated in favour of the 2nd Respondent Complainant."

As it turned out, the Bench mentions in para 5 that, "On the basis of the final report, case was taken on file as C.C.No.2260 of 2016. The first witness in the case is the 2nd respondent. The second witness is one Sethunath. He is son of late U.Raghavan. Sri.Sethunath earlier filed a complaint before the court below with the allegation that the accused therein forged document No.359 of 2007 impersonating his father. From his statement in police report, it is seen that on getting information from the village officer when he approached to remit tax for the property in question he came to know that some other persons approached that office for the payment of tax for the same property, and in his enquiry, he knew creation of document No.359 of 2007 falsely. His further statement is that he filed a complaint before the Magistrate which was sent for investigation and simultaneously he filed O.S.No.126 of 2012 before the Sub Court, Hosdurg for getting the said document set aside. The crime registered on the basis of his complaint, crime No.865 of 2012 was referred stating it to be ‘civil nature’. It was in the meantime the 2nd respondent filed another complaint before the court below, which ensued an investigation and filing of the present final report."

Most significantly and also most sagaciously, the Bench mandates in para 16 holding that, "As stated, if both the FIRs are with the same set of allegations and the offences constituting from the allegations are the same, the second FIR and the proceedings following such second FIR are illegal. If there is no sameness, if the nature of allegations and the facts involved and also the persons aggrieved are different, the bar would not be applied. In the instant case, from the statement of the second witness Sethunath in C.C.No.2339 of 2015, it is seen that the allegations in his complaint based on which the first FIR was registered was essentially regarding creation of document dated 27.01.2007 impersonating late U.Raghavan. It was in the name of Smt.Gracy Jacob. Subsequently the 4th accused who obtained property from Smt.Gracy Jacob alienated the property in question in favour of the 2nd respondent. The allegation of the 2nd respondent in his complaint are the fraudulent inducement by the 4th accused in the matter of execution of sale deed dated 30.10.2009 and receipt of Rs.22 lakh as sale consideration from the 2nd respondent. Conspiracy hatched by accused Nos. 1 to 4 for the purpose of executing sale deed in favour of the 2nd respondent are also essential parts of the allegations to constitute the offences alleged therein. In that view of the matter, allegations in the two F.I.Rs. have substantial difference. The complainants are different. All the accused are not common. In such circumstances, it cannot be said that both the FIRs are regarding the same offence and based on the same set of facts. Therefore the contention of the learned counsel for the petitioners that the charge in C.C.No.2339 of 2015 would only be groundless for the reason that it is based on a second FIR regarding the same incident is untenable."

It is worth noting that the Bench notes in para 17 that, "The learned counsel for the 2nd respondent would submit that only if the first complaint has been dismissed on merits, there can be a bar for the 2nd complaint and the proceedings thereon would become illegal. He avails assistance in this regard of the principle of law laid down by the Apex Court in Mahesh Chand v. B.Janardhan Reddy and another [(2003) 1 SCC 734]. Here, the first crime was registered on the basis of the complaint of Sri.Sethunath. The second crime was registered on the basis of a complaint filed by the 2nd respondent Both were filed before the court and forwarded for investigation invoking the provision of Section 156(3) of the code. When FIRs were registered based on those complaints and final report after investigation were filed, the character of the proceedings changed and both became cases arose on police reports. Therefore, the plea of the learned counsel for the 2nd respondent that there is no bar to the present case since the first complaint was not decided on merits does not assume importance in this case."

Finally, the Bench then rationally concludes by holding in para 18 that, "Of course, the first crime was referred stating that the dispute was of civil nature. That was at a time when the suit filed by Sri. Sethunath was pending. A full-fledged investigation was held only in the second case and the final report charging the petitioners with the offences mentioned herein before, was later filed. In the above circumstances, this case does not attract the bar of the second FIR. These revision petitions are devoid of merits. Accordingly, these revision petitions are dismissed."

In conclusion, we thus see that it is beyond a pale of doubt that second FIR is not barred if allegations are substantially different. This is what forms the bottom-line of this notable judgment. No denying!