IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 Crl.MC.No. 464 of 2011() ---------------------------------- CRIME NO.40/2011 OF PALAKKAD CUSBA POLICE STATION, PALAKKAD .................... PETITIONER(S): 1ST ACCUSED ------------------------------------------------ M. SUNDARAMOORTHY, MANAGING DIRECTOR, MALABAR CEMENTS LTD., WALAYAR, PALAKKAD DISTRICT. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE BY ADV. SRI. ALAN PAPALI SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANTS ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2. THE SUPERINTENDENT OF POLICE, PALAKKAD - 678 501. 3. B. TEENA, W/O.V. SASEENDRAN, KUNDUKULAM HOUSE, NENMENI, KOLLENGODE, PALAKKAD DISTRICT - 678 531. * ADDL.4TH RESPONDENT IMPLEADED * CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. * IMPLEADED AS ADDL.4TH RESPONDENT VIDE ORDER DATED 25/2/2011 IN CRL.MA.1217/2011 IN CRL.M.C.464/2011. R1 & R2 BY ADDL.D.G.P. SRI.P.N.SUKUMARAN ADDL.4TH BY ADV. SRI.C. CHANDRASEKHARAN PILLAI, SC FOR CBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2011, HE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.464 of 2011 --------------------------------------- Dated this 25th day of February, 2011 ORDER In respect of an incident which occurred on 24.01.2011 in which one Saseendran and his two children were found hanging in their house the Palakkad, Cusba Police registered Crime No.35 of 2011 on 24.01.2011 at about 11.30 p.m (for short, "the first FIR”) on the information given by the brother of the deceased Saseendran. He (not a witness to the incident) stated that Saseendran committed suicide after somehow killing the children. The police registered Crime No.35 of 2011 for the offence punishable under Sec.302 of the Indian Penal Code (for short, “the IPC”) and under Sec.174 of the Code of Criminal Procedure (for short, "the Code”) obviously attributing the offence under Sec.302 of the IPC to the said Saseendran for causing death of his children and Sec.174 of the Code for the said Saseendran committing suicide. The Circle Inspector, Cusba, Palakkad took up investigation of the case. The Circle Inspector recorded the statement of Teena, wife of deceased Saseendran and got it signed by her. On the strength of that statement the Sub Inspector, Cusba Police Station (Palakkad) Crl.M.C.No.464 of 2011 -: 2 :- registered Crime No.40 of 2011 on 02.02.2011 (for short, "the Second FIR”) incorporating Secs.306 and 506(i) of the IPC and mentioning three persons as accused who include petitioner, Managing Director of the Malabar Cements Limited, Walayar (for short, “the MCL”). Petitioner seeks to quash the second FIR (Crime No.40 of 2011) to the extent it concerned him on various grounds, viz; that law does not provide for registering a second FIR once a case has already been registered in respect of the same incident, that registration of the second FIR is malafide and intended to falsely implicate petitioner and that at any rate, even if the allegations in the second FIR are accepted, that did not reveal any offence against petitioner punishable under Secs.306 or 506(i) of the IPC. Learned Senior Advocate appearing for petitioner has contended that on the above grounds the second FIR is liable to be quashed. It is also pointed out by learned Senior Advocate that this Court vide judgment dated 29.01.2011 in W.P(C).No.3477 of 2011 has directed that investigation of the case be handed over to the Additional 4th respondent (for short, "the CBI”) which is to investigate the case after registering a case and in the circumstances quashing the second FIR against petitioner would Crl.M.C.No.464 of 2011 -: 3 :- not mean that after proper investigation is conducted, the CBI is forbidden from submitting appropriate report in Court implicating petitioner also as accused. In the circumstances the second FIR against petitioner is liable to be quashed. Learned Senior Advocate has placed reliance on the decisions in State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors. (AIR 1992 SC 604) and in particular the guidelines prescribed in paragraph 108(1) and (7), Antony Vs. State of Kerala (2001(3) KLT 1), Amalendu Pal @ Jhantu Vs. State of West Bengal (2010(1) SCC 707) and Gangula Mohan Reddy Vs. State of Andhra Pradesh (2010(1) SCC 750). Learned Additional Director General of Prosecution (for short, “the ADGP”) who appeared for respondents.1 to 3 contended that the first FIR was registered on the information given by the brother of deceased who is not a witness to the incident and on the materials supplied by him but in the course of investigation the investigating agency learnt involvement of petitioner and two others in the incident from the statement of the wife of the deceased Saseendran based on which the second FIR was registered. According to the learned ADGP, registration of a second FIR is not prohibited under law. At any rate it is possible that the two FIRs could be clubbed Crl.M.C.No.464 of 2011 -: 4 :- together. Reliance is placed on the decision in C.Muniappan and Ors. Vs. State of Tamil Nadu (2010(9) SCC 567), paragraph 37 to contend that there could be two FIRs and that clubbing of FIRs is possible. It is contended by learned ADGP that on the materials on record registration of the case against petitioner is justified. It is contended that the decisions in Amalendu Pal @ Jhantu Vs. State of West Bengal (supra) and Gangula Mohan Reddy Vs. State of Andhra Pradesh (supra) relied on by the learned Senior Advocate concerned correctness of conviction of accused for offences punishable under Sec.306 of the IPC. According to the learned ADGP, for the registration of a case it is sufficient that the investigating officer has reason to suspect from information received or otherwise involvement of petitioner and others. Learned Standing Counsel for the CBI supplementing the argument of learned ADGP contended that no interference is required and that involvement of petitioner and others would be investigated by the CBI to which the case has been handed over. 2. I shall first consider the argument advanced by the learned Senior Advocate that there could be no second FIR so far as facts of the case is concerned. It is pointed out that Crl.M.C.No.464 of 2011 -: 5 :- registration of the second FIR based on the signed statement of the wife of the deceased Saseendran is hit by Sec.162 of the Code in so far as the investigating agency, in the course of investigation could not have obtained a signed statement from a person who according to the investigating officer is acquainted with the facts of the case. 3. I stated the factual situation where two FIRs were registered. In Antony Vs. State of Kerala (supra) the Supreme Court held that there could be no second FIR in respect of the same incident and that only the first FIR on the first information regarding commission of the cognizable offence satisfied requirement of Sec.154 of the Code. It was held that there could be no second FIR and consequently and no fresh investigation on receipt of every subsequent information in respect of the same occurrence or incident, giving rise to one or more cognizable offences. There, in respect of the same matter, two incidents occurred at two different places at two times though, the same day. Two FIRs were registered. Thereafter, the State Government ordered a Judicial Enquiry and based on the report of the Judicial Enquiry yet another FIR was registered. That was challenged before the Supreme Court and Crl.M.C.No.464 of 2011 -: 6 :- it was held that registration of that FIR is illegal as an FIR had already been registered in respect of the same subject matter. The said decision was considered by a Bench of three judges of the Supreme Court in Upkar Singh Vs. Ved Prakash (2004(3) KLT 444). It was held referring to the decision in Antony Vs. State of Kerala (supra) in paragraph 18, that it is clear from the words emphasized in paragraph 27 of the decision in Antony Vs. State of Kerala (supra) that the Supreme Court in the said case had not excluded registration of a complaint in the nature of counter case from the purview of the Code and that in the opinion of the Supreme Court (in the latter case) the decision in Antony Vs. State of Kerala (supra) only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of the case, is prohibited under the Code because an investigation in that regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint and hence will be prohibited under Sec.162 of the Code. In Upkar Singh Vs. Ved Prakash (supra) reference was made to the decision in Kari Choudhary Vs. Mst. Sita Devi and Ors. (2002(1) SCC 714) and the Crl.M.C.No.464 of 2011 -: 7 :- observation in the said case was quoted with approval which is as under: “. . . . . Even that apart from, the report submitted to the Court styling it as FIR.No.208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No.135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR NO.135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offence alleged have been committed and, if so, who have committed it” (emphasis supplied) 4. A reading of paragraph 37 of the decision relied on by the learned ADGP (C.Muniappan and Ors. Vs. State of Tamil Nadu) would show that two FIRs were registered in respect of two separate incidents though, the second incident was a fall out of the first one. It is in the said circumstance that the Supreme Court held that registration of two FIRs in respect of two separate incidents cannot be said to be illegal. 5. Latest decision on the point is Chirra Shivraj Vs. State of Andhra Pradesh (2010(12) Scale 487) where Crl.M.C.No.464 of 2011 -: 8 :- acceptability of two FIRs was considered. That was a case where a person sustained injury in respect of which a case was registered on the information given by the injured and later he succumbed to the injuries. On his death, a second FIR was registered. The Supreme Court held in paragraph 16: “In our opinion, it was not necessary to record another FIR as the death was result of septicemia which was due to the burn injuries”. 6. The Supreme Court however refused to interfere with the conviction of accused merely for the reason that the S.H.O made a mistake by recording a fresh FIR especially as it did not cause any prejudice to the accused. It was held in paragraph 17: “Looking to the facts of the present case, in our opinion, in fact the second FIR was nothing but a consequence of the event which had taken place on 21st April, 1999. In the circumstances, the contents of the so called second FIR being FIR No.152/99 could have been incorporated in the police diary as a result of further information or event which had been taken place in pursuance of first offence, which had been recorded under FIR No.46/99.” (emphasis supplied) Crl.M.C.No.464 of 2011 -: 9 :- 7. In the present case so far as the first FIR (Crime No.35 of 2011) is concerned, that case was registered on the premise that death of the children was caused by the deceased Saseendran and he committed suicide. In other words, charge under Sec.302 of the IPC in the first FIR is attributed to the deceased Saseendran while in respect of his committing suicide the section incorporated is under Sec.174 of the Code. In the second FIR, what the police would allege is that deceased Saseendran caused the death of children and himself committed suicide due to abetment and criminal intimidation by the persons mentioned in the second FIR. In other words, it only supplements the allegations contained in the first FIR as to the reason for the deceased Saseendran committing suicide after causing the death of the children. The decision in Antony Vs. Stae of Kerala (supra) was explained in Upkar Singh Vs. Ved Prakash (supra) to the effect that the former decision did not exclude registration of a complaint in the form of a counter case from the purview of the Code. I am not persuaded to think that the second FIR in this case is in respect of separate incident independent of the incident in the first FIR or is in respect of a counter case so that a second FIR could have been registered. Crl.M.C.No.464 of 2011 -: 10 :- As pointed out by Supreme Court in Kari Choudhary Vs. Mst. Sita Devi and Ors. and Chirra Shivraj Vs. State of Andhra Pradesh (supra) what was required was only to incorporate the information received in the course of investigation as to the reason for deceased Saseendran (allegedly) causing death of children and (allegedly) committing suicide in the case diary and to report to the Court the said fact being incorporated in the first FIR and investigation being conducted in respect of the said offences against persons suspected and mentioned in the second FIR. In the circumstances the second FIR (in Crime No.40 of 2011 need only be treated as an interim report submitted by the S.H.O of the Police Station concerned to the Court that in the course of investigation materials mentioned in the second FIR were revealed, the said fact is to be incorporated in the first FIR and that investigation is proceeding in that line. Merely for the reason of the S.H.O committing a mistake in registering a second FIR instead of giving an interim report in the first FIR, it is not necessary to quash the second FIR. The Supreme Court in Kari Choudhary Vs. Mst. Sita Devi and Ors. (supra) obseved that to quash the proceedings merely on the ground that final report had been laid in the FIR No.135 (ie. the second FIR) is, to Crl.M.C.No.464 of 2011 -: 11 :- say the least, too technical and that the ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it. The prayer to quash the second FIR and all proceeding taken pursuant thereto cannot in the circumstances be allowed. 8. The learned ADGP has a contention that the two FIRs could be clubbed together. In the light of the finding and direction made above it is not necessary to consider that argument. 9. Then the next question is whether the statement (said to be) given by the wife of deceased Saseendran got signed by the investigating officer and based on which the second FIR was registered could be acted upon. Learned Senior Advocate contended that it is not as if the wife of the deceased Saseendran owns up the said statement and instead came to this Court with W.P(C).No. 3477 of 2011 contending that it is not a case of Saseendran killing the children and committing suicide but it is a case of murder of her children and the husband. As it is, there is a statement (allegedly) given by the wife of the deceased and signed by her. I am not required to say at this stage whether any such statement was given or not. What was Crl.M.C.No.464 of 2011 -: 12 :- the indication given by the wife of the deceased Saseendran in that statement is a matter which the investigating agency has to look into; whether she meant it as an offence coming under Secs.306 and 506(i) of the IPC or she meant it as a case of murder, pure and simple. 10. Yet another argument advanced is that it is not clear how that part of the CD statements connected with Crime No.35 of 2011 (first FIR) reached the Sub Inspector who registered the second FIR. It is also pointed out that the statement of wife of the deceased based on which the second FIR (Crime No.40 of 2011) is registered is hit by Sec.162 of the Code. So far as first argument is concerned, I must bear in mind that the second FIR is registered by the S.H.O of the police station concerned based on the statement (allegedly) given by the wife of the deceased, recorded by the then investigating officer and (allegedly) signed by the informant. There is nothing wrong in the S.H.O registering the case based on the information given to and recorded by another police officer (in this case subject to my finding as to registration of the second FIR). So far as the second argument is concerned there is force in the contention of learned Senior Advocate. If in the course of the investigation the Crl.M.C.No.464 of 2011 -: 13 :- statement of a person who according to the police officer is acquainted with the facts of the case is recorded, that statement shall not be got signed by the person giving the information. That is the mandate of Sec.162 of the Code. I stated that the second FIR need only be treated as an interim report filed in the case based on first FIR. In that case, the second FIR cannot be treated as a FIR and it follows that the investigating officer was not legally correct in getting the signature of the wife of the deceased Saseendran in her statement. But, it is not the law that whenever the signature of the person is obtained in his statement recorded in the course of investigation that statement should be ignored. The law on the point informs me that in such situation the Court must be cautious in appreciating the evidence that the witness who gave the signed statement may give in Court (See Tilkeshwar Vs. Bihar State (AIR 1956 SC 238), State of U.P VS. M.K Anthoni (AIR 1985 SC 48) and State of Rajasthan Vs. Teja Ram and Ors. (AIR 1999 SC 1776). It has been held that obtaining the signature of the witness in the statement recorded under Sec.161 of the Code does not render it inadmissible under Sec.161 of the Code but, it may affect the weight to be attached to the evidence of such Crl.M.C.No.464 of 2011 -: 14 :- witness. Notwithstanding that the statement is signed, it continues to be a statement recorded under Sec.161 of the Code, going by the said decisions. In the circumstances, it is a matter which the Court concerned has to consider when the evidence that the wife of the deceased may give in the case as to the effect of the her giving a signed statement to the police under Sec.161 of the Code in the light of the decisions referred supra. 11. The next question is whether treating the second FIR as an interim report filed in the first FIR, the police could have proceeded against petitioner for offences punishable under Secs.306 and/or 506(i) of the IPC. It is in this connection that learned Senior Advocate has placed reliance on the decisions in Amalendu Pal @ Jhantu Vs. State of West Bengal (supra) and Gangula Mohan Reddy Vs. State of Andhra Pradesh (supra). In the former decision, it has been held in paragraph 12, referring to the application of Sec.306 of the IPC: “the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other Crl.M.C.No.464 of 2011 -: 15 :- alternative but to put an end to her life and that it is to be born in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Sec.306 of IPC was found to be not sustainable”. Similar view was taken in Gangula Mohan Reddy Vs. State of Andhra Pradesh (supra) also. 12. But, I must bear in mind that now the investigation is at the preliminary stage and it is not a challenge to the conviction but the question involved is only whether the FIR in Crime No.40 of 2011 (which, I stated has be treated as interim report filed in the case on the first FIR ) has to be quashed as if no offence is made out against petitioner. For that, reference to the materials on record is required. 13. Learned Senior Advocate invited my attention to the first information statement given by the brother of the deceased and based on which the first FIR (Crime No.35 of 2011) is registered. Learned Senior Advocate pointed out that a reading of the statement of brother of the deceased would show that the Crl.M.C.No.464 of 2011 -: 16 :- informant had given that statement after a discussion with the wife of the deceased (on whose signed statement, the second FIR was registered) and what the brother of the deceased stated is that for some reason or the other on account of some mental agony Saseendran caused death of children and committed suicide. It is pointed out that there is no whisper against petitioner in any way being responsible for the deceased Saseendran committing suicide. It is also contended by learned Senior Advocate that even so far as the signed statement given by the wife of the deceased (based on which Crime No.40 of 2011 was registered) is concerned, there is no specific mention about any act or omission on the part of petitioner who recently took charge as Managing Director of the MCL. It is pointed out that even the wife of deceased is not owning the said signed statement in that she requested this Court to order an investigation by the CBI alleging it is a case of murder of her children and husband. Learned Senior Advocate invited my attention to the writ petition filed by her and her father in law (W.P.(C).3477 of 2011) where also, it is contended, there is no allegation against petitioner. It is pointed out that at any rate no act or omission of petitioner could be the proximate reason for Crl.M.C.No.464 of 2011 -: 17 :- the deceased Saseendran committing suicide. 14. It is contended that the deceased Saseendran resigned from the company on 06-09-2009, that resignation was accepted 08-09-2009 and he received all his benefits from the company on 18.01.2011. But the incident occurred only on 24.01.2011. Learned Senior Advocate would contend that there is nothing on record to show that any allegation attributable to the petitioner had any proximate connection with the death of the deceased. It is also pointed out by learned Senior Advocate that though the statement of the wife of deceased was allegedly recorded by the Sub Inspector on 25.01.2011, Crime No.40 of 2011 was registered only on 02.02.2011. My attention is invited to the second FIR and it is pointed out that column No.14 does not contain the signature of the informant which according to the learned Senior Advocate indicated that at the time statement of the informant was allegedly recorded or the second FIR was registered, she was nowhere at the Police Station. A further fact learned Senior Advocate wanted me to consider is that going by what is stated in the report of the Sub Inspector appended to the second FIR (Crime No.40 of 2011) it was on getting legal advice and as per instruction of the superintendent of Police that the Crl.M.C.No.464 of 2011 -: 18 :- Sub Inspector registered