The First Information Report is registered under Section 173 of the Bhartiya Nagarik Suraksha Sanhita 2023 in case a cognizable offence is made out. Important amendments have been made in Section 173 of the Bhartiya Nagarik Suraksha Sanhita 2023, and the same have been dealt with by the Hon’ble Apex Court in the case of Imran Pratapgadhi vs. State of Gujarat, wherein it was held that in case of cognizable offences punishable with imprisonment which is more than 3 years but not more than 7 years, the Investigating Officer may conduct a preliminary inquiry to ascertain as to whether the cognizable offence is made out or not. This needs to be read with the law laid down in the case of Lalita Kumari vs. State of U.P.
The law relating to the second FIR remains unchanged under the new legislation. In this article, we explore the issue of the second First Information Report.
Second FIR
A second First Information Report may be registered, but the same must be subject to the principle of double jeopardy, the rule of fair investigation, the test of sameness, and abuse of process of law.
When can a second FIR be registered?
The Hon’ble Apex Court in a recent judgment has culled out certain principles regarding the permissibility of the registration of the second FIR. They are as follows:
- When the second FIR is a counter-complaint or presents a rival version of a set of facts, in reference to which an earlier FIR already stands registered.
- When the ambit of the two FIRs is different, even though they may arise from the same set of circumstances.
- When investigation and/or other avenues reveal the earlier FIR or set of facts to be part of a larger conspiracy.
- When investigation and/or persons related to the incident bring to light hitherto unknown facts or circumstances.
- Where the incident is separate, offences are similar or different.
When can the Second FIR be quashed?
In the landmark case of T.T. Anthony vs. State of Kerala, the Hon’ble Apex Court held as follows:
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.”
Hence, the Hon’ble Allahabad High Court may exercise its extraordinary writ jurisdiction to quash a second first information report, in line with the settled law.
If the second FIR falls under the abovementioned FIVE cases, and the police do not register the First Information Report, what can you do?
Section 173(4) of Bhartiya Nagarik Suraksha Sanhita 2023 provides the entire procedure which one may follow if the police refuses to register the first information report.
For better understanding, the same is reproduced below:
(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which he may make an application under sub-section (3) of section 175 to the Magistrate.
In a recent judgment, the Hon’ble Apex Court further held that approaching the police and subsequent application before the Superintendent of Police are mandatory before the filing of an Application under Section 175(3) of BNSS.