-By Abhinav Sekhri
2020 (and January 2021) witnessed a series of high-profile cases where the potential accused persons were sought to be prosecuted across the country for their conduct. Arnab Goswami, Amish Devgn, the makers of Tandav; in all these cases, specific speech acts of the accused persons attracted the ire of people across states and led to the filing of multiple cases. All these accused persons had to go to the Supreme Court for reliefs, asking for quashing the multiple cases or at least clubbing all cases to one place. As an interim measure, the Supreme Court agreed to the transfer request (except, in Tandav).
These kinds of cases are quite common, and before TV news and OTT it used to be newspaper / magazine articles that prompted such a flurry of litigation. This does not mean, however, that there is no problem here. Multiple cases for the same underlying offence potentially expose a person to double jeopardy — not only in the limited sense of double punishment, but the hazards of facing the threat of arrest from different police forces as well during an investigation. Further, in a legal system crushed under the weight of its pending cases such litigation is sheer wastage of what are scarce resources of judicial time and money.
The problems, therefore, are really quite serious. This post discusses with the remedies that are in place to address them, and argues that these are inadequate and ineffective. The primary remedy — arguing that a second FIR cannot be registered for the same offence — is found wanting not only because it cannot offer preemptive help and requires intervention either by the Supreme Court or a High Court, but also because of how (justifiably) the Supreme Court has narrowly read this test to prevent frustration of legitimate investigations. Building on the logic of the second FIR line of cases, I argue that it is possible in 2021 to try and invent remedies at the magistracy level, focusing on the twin problems identified above of the harassment faced by an accused as well as wastage of judicial time and money.
The “Second FIR” Law
Since at least 2001, when the Supreme Court decided T.T. Antony [(2001) 6 SCC 181], no doubts remained that a second FIR could not be registered for the same incident. As a result the prosecutions launched against Antony and the others in 1997 (by a new government) for a police firing incident of 1993 were set aside, as these persons had already been prosecuted for the same incident in 1994. The judgment went into the logical problems of having two “first” information reports to back its conclusion, but thankfully it also made more substantive arguments touching issues of the jeopardy such multiple prosecutions would bring:
“However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report”
Notice the use of “same incident” here, and note that within Antony, the phrase “same offence” finds no mention at all. The potential width of same incident versus same offence is worth pointing out, as while an incident can contain many potential offences, the offence itself is a much narrower formulation. This is evidently a double-edged sword which could frustrate more serious investigations from taking place where a lousy first FIR gets registered for an incident. Over time, the law on this position has been repeatedly clarified to prevent such situations. Thus, within Antony itself, an exception was carved out for what are called “cross-cases” arising from this same incident, i.e. cases depicting the conflicting versions of two sides to a dispute. Then in Upkar Singh [(2004) 13 SCC 292] it was clarified that a second FIR for other offences in the same transaction is not always barred when new facts come to light. A decade later in Anju Chaudhary [(2013) 6 SCC 384] and Amitbhai Shah [(2013) 6 SCC 348], different benches of the Court re-iterated the narrowness of the Second FIR logic, and in Anju Chaudhary it was stated that:
“It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, 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 did not refer to either Amitbhai Shah or Anju Chaudhary while passing orders dated 19 May 2020 in Arnab Ranjan Goswami [WP (Crl.) 130 of 2020], but its analysis of the issue was telling. The Court looked at the several complaints that were filed and was persuaded of their similarity not only because they pertained to the same incident, but also their content was in near-identical terms, leading to the irresistible conclusion that there was an “identity of cause of action”.
What is the upshot of this? The Court has consistently held that a multiplicity of criminal proceedings for the same cause of action is impermissible. At the same time, the remedy it has crafted is necessarily post-facto and requires in-depth examination of the multiple cases to determine their purported similarity. As it is probable that the cases may fall across state boundaries, it also means that the only court unequivocally competent to hear such cases is the Supreme Court itself. All of which creates a fairly long period of time in which there is no protection for accused persons from various state police forces; police forces which spend taxpayer money investigating into the same underlying acts.
Is there really no better way to solve this problem apart from taking a gamble and going to court hoping to convince a court that the many different complaints against a person all stem from the same incident, to an extent where the court is agreeable to grant urgent reliefs? Note, that the focus here is on police cases (not complaints) and on the stage before a case comes formally to a court after an investigation is over. For complaints, it is possible to also explore proceedings under Section 186 Cr.P.C. which would be filed before a High Court and become open once cognizance is taken, i.e. at the outset of a complaint case. Similarly, transfer applications are yet another remedy, but they also limited to cases where cognizance has been taken in normal course. For our specific problem, there is no ready solution on the statute book.
The history of “Second FIR” cases makes obvious the limitations in this remedy: (i) its costs, as going to the Supreme Court and getting a relief is not cheap and something only the rich and powerful can afford; (ii) the risk in doing a top-down litigation, as any observation from the Supreme Court can sway the course of the litigation before lower courts; (iii) the necessarily standards-based nature of the evaluation of facts, and; (iv) the lack of any preventive aspect. It is far from true that the problem itself is limited to those who might be rich and powerful. With the spawning of complaints based on social media utterances, it is fair to state that this is an issue to which any person can face today. As a result, it is all the more imperative that an accessible remedy exists to help deal with this problem. One that begins at the level of the magistracy or sessions court judges, rather than works in a precarious top-down manner starting with the Supreme Court first.
Could Section 156(3) Cr.P.C. provide an answer? Since the decision in Sakiri Vasu [(2008) 2 SCC 409], a renewed emphasis has come to be placed on the role played by the concerned magistrate in ensuring a fair investigation takes place. Accused persons have also been given locus to assist the court in securing this objective through this interpretation of the clause. Could an accused person, or the magistrate herself, not insist on a report from the police on the status of other cases that might have been filed? With the advent of the CCTNS system in which details for accused persons named in FIRs have been rendered accessible to police and courts across the country, it is not that hard to execute such a task. But the problem is, what can a trial court do with this? At best, the trial court could pass an order saying the multiple investigations seem bogus and the accused can use this in the High Court. Even this exercise, to remain fair, must carry the kind of subjectiveness in review that is on display in Arnab Goswami and other cases however.
In addition to this, one other remedy can be the crafting of a new kind of temporary anticipatory bail order in such cases, coupled with the time that it takes for a court to decide the plea of closing the multiple FIRs, that could be granted. This would not only ensure that a potential accused is not harassed while a court is in seisin of the legal challenge, but also indirectly spur the court to dispose of this matters urgently so as to ensure that the interests of ongoing investigations are not forsaken in the process. Instead of clubbing this as an interim prayer only available before the Court in which the main petition is filed, however, I suggest it remain an option available even for the sessions court. This could work in the way that a convicting court can grant bail for thirty days, allowing a convict to prefer an appeal against conviction. Here, that time would be significantly shorter, but at least would ensure that a person cannot be picked up while she attempts to pursue her legal remedies.
Lastly, perhaps courts or government could craft certain rules or procedures to help stem the tide when it comes to prosecutions for online speech or even speech on TV channels. The recent Intermediaries Rules 2021 provide for a grievance-redressal mechanism that focuses on the complainant but it does not account for the potential harassment faced by content creators and users. While the Supreme Court has now asked the government to go back to the drawing board with the Rules as in its eyes it lacked “teeth”, perhaps the government could use this opportunity to add this kind of a safeguard to streamline potential prosecutions in this arena.
The problem identified in this post is an obvious one that has been a part of the system, and one which is only becoming more prolific over time — multiple complaints for the same alleged acts which not only expose a person to double jeopardy but also waste judicial time and taxpayer monies. It was identified two decades ago by the Supreme Court as well, but unfortunately, the remedies crafted by the Court have failed to keep up with the times and offer little succour to those hounded by multiple law enforcement agencies and criminal complaints, all of which show an “identity of cause of action”. A more effective solution is urgently necessary to ensure that personal liberty is not reduced to a pipe-dream.
[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]