Permissibility of second FIR and application of 'test of sameness' to determine if the FIRs relate to the same incident or transaction.

JUDGMENT :

1. Sri Rajendra Kumar, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General alongwith Sri Ratnendu Kumar Singh, learned Additional Government Advocate appearing for the State-opposite party.

2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the charge sheet no. 01 dated 28.8.2018 and summoning order dated 6.1.2020 as well as entire proceedings of Case No. 58 of 2020 (State vs. Beekki) arising out of Case Crime No. 256 of 2018, under Sections 41, 411, 413 IPC, P.S. Kotwali, District Ghazipur, pending in the court of Chief Judicial Magistrate, Ghazipur.

3. Counsel for the applicant has sought to contend that in respect of the same incident, an earlier FIR dated 29.3.2018 was lodged under Section 392 IPC, P.S. Kotwali, District Ghazipur, which was registered as Case Crime No. 120 of 2018. It is submitted that the present criminal proceedings having been initiated pursuant to a subsequent FIR relating to the same incident, the proceedings are vitiated and the applicant has been falsely implicated by showing false recovery against him.

4. Learned Additional Advocate General appearing for the State-opposite party, has controverted the aforesaid assertion by pointing out that the earlier FIR dated 29.3.2018 was lodged under Section 392 I.P.C. by one Krishnawati Devi-first informant against unnamed accused. The allegations in the FIR are in respect of an incident stated to have occurred on 29.3.2018 which relate to chain snatching.

5. It is submitted that the FIR, which forms the genesis of the present criminal case is of 26.6.2018, lodged under Sections 41, 411 and 413 I.P.C., P.S. Kotwali, District Ghazipur. The first informant in the present FIR is one Divya Prakash Singh, Sub-Inspector, Police Station-Kotwali, District Ghazipur, and it relates to an incident dated 25.6.2018, wherein the applicant and one other person have been named as accused. The FIR version relates to recovery of certain stolen property said to have been found in the possession of the accused which is stated to have been retained by the said persons by theft. It is submitted that the incident dated 29.3.2018, regarding which, the earlier FIR had been lodged, is referred to as one of the several acts of theft relating to which the stolen property had been recovered from the accused.

6. The aforementioned question as to when a second FIR was permissible, was subject matter of consideration in Babubhai vs. State of Gujarat and others, (2010) 12 SCC 254, wherein it was held that in case of a subsequent FIR, 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 same occurrence or in regard to the incident which are two or more parts of the same transaction, and in case where the version in the second FIR is different and they are in respect of two different incidents, the second FIR is permissible. It was held as follows :

“21. 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.”

7. The permissibility of second FIR was subject matter of consideration in Nirmal Singh Kahlon vs. State of Punjab, (2009) 1 SCC 441, wherein referring to an earlier decision in Ram