Orissa High Court: Informant Can Be Made an Accused in the Same Case, Second FIR an Irregularity Not an Illegality

Cuttack, India – In a significant judgment clarifying a crucial aspect of criminal procedure, the Orissa High Court has ruled that an informant who files a First Information Report (FIR) can subsequently be arrayed as an accused in the same case if the investigation uncovers evidence of their complicity. The Court emphasized that there is no legal bar preventing this and that investigating officers need not register a separate FIR to implicate the original informant.

A Division Bench comprising Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash , while deciding a criminal appeal in Prasanta Kumar Sahoo v. State of Odisha , held that such a procedural turn does not inherently vitiate the prosecution. The Bench further clarified that the erroneous registration of a second FIR, while contrary to established legal principles, amounts to a curable "irregularity" rather than a fatal "illegality," provided it does not cause prejudice to the accused.

In its detailed order, the Court observed:

“We are of the humble view that the informant of a case is not excluded from becoming an accused in the same case, if during course of investigation, materials come against him relating to his complicity in the crime. In other words, even an informant can be charge sheeted as accused in the same case, if clinching materials come against him in course of investigation.”

This ruling provides critical guidance to law enforcement agencies and legal practitioners, streamlining the investigative process when the needle of suspicion turns towards the very person who initiated the legal proceedings.

Case Background: A Tale of Betrayal and Procedural Twists

The case stemmed from a conviction for murder and destruction of evidence under Sections 302 and 201 of the Indian Penal Code (IPC). On the night of August 13-14, 1996, the appellant, Prasanta Kumar Sahoo, discovered the dead body of his adoptive father and his severely injured adoptive mother. He promptly reported the incident to the police.

In his initial written complaint, which formed the basis of the first FIR, the appellant suggested a history of domestic strife between his adoptive parents, alleging they had a heated quarrel and had threatened to kill each other. Based on this information, the police registered the FIR naming his injured adoptive mother as the accused.

However, the investigation took a dramatic turn. The Investigating Officer (IO) unearthed credible evidence pointing to the appellant's own involvement in the crime. This led the IO to register a second FIR , this time arraying the appellant and his second wife as the accused. While his wife was arrested and later acquitted in a separate trial, the appellant absconded. He eventually surrendered, faced a separate trial, and was convicted.

The Core Legal Challenge: Legality of the Second FIR

The appellant's primary ground for challenging his conviction was the registration of the second FIR for the same offense. His counsel argued that this action was unwarranted and illegal, rendering all subsequent proceedings, including the investigation and trial, a nullity. It was contended that if the investigation revealed the appellant's complicity, he should have been added as an accused in the original case, not subjected to a new one.

This raised a pivotal question for the High Court: Does the registration of a second FIR constitute an incurable defect that vitiates the entire prosecution against the appellant?

Judicial Analysis: Upholding Substance Over Form

To address this question, the Division Bench meticulously analyzed the established jurisprudence on the matter, primarily relying on the landmark Supreme Court judgment in T.T. Antony v. State of Kerala & Ors. (2001) . In that case, the apex court laid down the definitive principle that the scheme of the Code of Criminal Procedure (Cr.P.C.) only allows for one FIR concerning a single cognizable offense. The Court in T.T. Antony stated:

“...there can be no second F.I.R. and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.”

The Orissa High Court affirmed this principle, noting that the IO in the present case should have arrayed the appellant as an accused within the confines of the original investigation rather than initiating a new FIR.

However, the Bench drew a fine but critical distinction between an "illegality" and an "irregularity." It concluded that while registering the second FIR was a procedural misstep, it did not automatically nullify the entire case. The Court held that this procedural deviation could be considered a non-fatal irregularity unless the appellant could demonstrate that it caused him "real prejudice."

Elaborating on this point, the Court clarified:

“However, the lodging of second F.I.R. relating to the same occurrence can be said to be an irregularity in the factual scenario and not an illegality which would vitiate the prosecution case. It cannot be said that the appellant was prejudiced merely because P.W.13 lodged the F.I.R. vide Ext.17 arraigning him as an accused while investigating the case initiated at the instance of the appellant.”

This nuanced interpretation ensures that substantive justice is not defeated by procedural errors, placing the onus on the defense to prove that a procedural lapse resulted in a tangible miscarriage of justice.

Competency of the Investigating Officer

The appellant also challenged the investigation on the grounds of bias, as the IO who conducted the investigation was also the informant in the second FIR. The Court swiftly dismissed this contention, asserting that an officer's role as an informant does not inherently disqualify them from investigating the same case.

The Bench stated there is no provision in the Cr.P.C. that prevents a police officer who records an FIR from taking up the investigation. Such an investigation, the Court noted, can only be assailed on the grounds of "bias or real likelihood of bias," which must be proven with concrete evidence, not mere procedural status.

“There is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received makes out an F.I.R. incorporating his name as the informant, he forfeits his right to investigate,” the Court added, reinforcing the legal capacity of the IO.

Conclusion and Implications

The judgment in Prasanta Kumar Sahoo v. State of Odisha serves as a powerful reiteration of established criminal law principles while providing practical clarity on their application. It reinforces the singularity of the FIR as the starting point of an investigation but wisely prevents procedural errors from becoming a shield for the accused to escape justice.

For legal professionals, this decision underscores the importance of demonstrating actual prejudice when challenging procedural lapses. For law enforcement, it offers clear guidance: when an informant becomes a suspect, the correct procedure is to continue the investigation under the original case file and add them to the array of accused, rather than registering a new FIR. This approach upholds the integrity of the investigation while adhering to the foundational principles laid down by the Supreme Court.