CASE TITLE:
Shipra Dey v. State of West Bengal & Ors.
DATE OF ORDER:
24 January 2023
JUDGE(S):
Justice Hiranmay Bhattacharyya
SUBJECT
The learned Calcutta High Court in the present case held that there is no bar on registration of a second FIR where the incident complained against are different notwithstanding that the offences are similar or different or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first.
IMPORTANT LEGAL PROVISIONS
CODE OF CRIMINAL PROCEDURE
- Section 41A- requires a notice to be served on the upon the accused to appear before the police officer.
- Section 160- requires that an order in writing be served upon the accused for appearance before the concerned police officer.
- Section 200- requires the Magistrate to hear a case and question the complainant and any witnesses present under oath for a sufficient amount of time to satisfy himself.
BRIEF FACTS OF THE CASE
- Snehomoy Dey, the deceased died while in the custody of the police for investigating of charges levied against him.
- A writ petition has been filed by the widow of the deceased praying the court to issue directions for registration of FIR against the 4th respondent as well as other officers of the concerned police station. Initiation of disciplinary proceeding against the 4th respondent for payment of compensation has also been prayed for.
- According to the petitioner, there existed some dispute between the deceased and the private respondents. On account of the animosity, the 9th respondent filed a complaint against the deceased on the ground that he has outraged her modesty.
- It was submitted in the petition that two officers of the concerned police station appeared at the deceased’s home and asked him to appear before the 4th respondent at the Police Station.
- The deceased accompanied by his brother, visited the Police Station. It is alleged that the 4th respondent used harsh words and pressed him to accept his guilt and as a result of constant threats and pressure, the deceased suffered a cardiac arrest and died.
- On the day following this incident, the petitioner filed a complaint at the Police Station.
- It is the case of the petitioner that while an FIR, pursuant to her complaint was registered against the private respondent, it was not registered against the 4th respondent.
ARGUMENTS ADVANCED BY THE PETITIONER
- It is argued by the learned counsel for the petitioner contended that the Police officers failed to comply with the relevant procedure laid down u/s 41A and 160 of CrPC
- That the Police authorities also failed to discharge their obligation by failing to register the FIR against the 4th respondent as well,
ARGUMENTS ADVANCED BY THE RESPONDENTS
- The learned counsel for the respondent State contended that the petitioner by a letter requested the police authorities not to proceed with the complaint again the 4th respondent.
- It was also submitted that a second FIR on the same incident is not permissible as such, new FIR against the 4th respondent should not be registered..
LEGAL ISSUE
- Whether the police authorities in the present case failed to comply with the relevant procedures laid down in section 41A and section 160 of the Code?
- Whether there was inaction on the part of the respondent police authorities in not registering an FIR on the complaint made by the writ petitioner against the 4th respondent and others?
ANALYSIS BY THE COURT
- The learned Court while adjudicating upon the natter observed the requirements of section 41A and section 160 of the Code.
- Section 41A requires a notice to be served on the upon the accused to appear before the police officer. Section 160 also requires that an order in writing be served upon the accused for appearance before the concerned police officer.
- The Court observed the view taken in Lalita Kunari v. Government of India & Ors [(2014) 2 SCC 1], wherein it was held that if a decision is taken by the police authorities to conduct an enquiry, the same has to be recorded.
- On the contention raised by the learned counsel for the respondents that the petitioner by a letter requested not to proceed with the complaint against the 4th respondent, the Court observed that after perusing the matter and documents on record it is noted that the letter only contained a direction to proceed with the complaint against the private respondents after completion of the deceased’s last rites. The Court concluded that as such, mere omission of the name of the 4th respondent in the letter would not amount to imputing that the petitioner did not intend to proceed against 4th respondent.
- On the issue of the multiplicity of the FIR, the Court noted that in Anju Choudhary v. State of UP & Anr. [(2013) 6 SCC 384] the Apex Court after reiterating the settled principle that there cannot be two FIR’s registered for the same offence clarified by observing that where the incident is separate; offences are similar or different or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered.
- The Court by observing the relevant complaints in question, opined that the offences complained of in both the complaints are different, thus there is no bar on registration of another FIR.
CONCLUSION
The light of the above observations made, the learned Court concluded that the police authorities were wrong in taking the recourse not in conformity with the procedure laid down in the Code. The Court furthur directed the competent Magistrate to register a complaint u/s 200 of the Code and to proceed thereafter in accordance with law.
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