SCRB POLICE CIRCULAR VIOLATES MANY SUPREME COURT ORDER HAVE NO LEGAL VALUE. POLICE MANDATORY TO DO INVESTIGATION IN E FIR FOR ALL COGNIZABLE OFFENCE.
Bhopal : The State Crime Record Bureau (SCRB) has framed E FIR Circular dated 13 Aug 2021 has many loop holes
The concept of sameness is to be construed in a restricted manner. As per Surender Kaushik and Others v State of Uttar Pradesh and others, it does not allow registration of complaint that would amount to improvement of facts in the FIR that is filed at the first instance. It further prohibits complaint against the same accused. The subject matter of complaints is tested through de facto assessment of ‘test of sameness’. If the complaints are related to same incident in same occurrence or is part of the same transaction, the subject matter of both the complaints are same. Events are part of the same transaction if they are related to same incident at the given place in close proximity of time. In cases where allegations in the FIR are different and separate having different spectrum then it will be regarded as counter-complaint and not as efforts to improve allegations made in the first instance.
For evaluation of this, mentioning of same or different sections is not an indicator but rather the mode and modalities of commission of the offence and its nature is as per Nirmal Singh Kahlon v State of Punjab.
Section 154 contains inbuilt safeguards against abuse of power by police, double jeopardy and for fair investigation. In Anju Chaudhary v. State of U.P., multiple FIRs were observed to allow re-investigation by same agency negating the rights given to the suspect and is also beyond the competence of Police.
In Amitbhai Anilchandra Shah v CBI and another, a second FIR on same occurrence is held to be violative of Article 21 of the constitution and upheld the “consequence test” to determine if offences are to be treated as part of same offence- if allegation that is a part of the second FIR follows or arises as a consequence of the offence in the first, the offences in both the FIRs are same and hence, the second FIR will be impermissible.
In the case of Prem Chand Singh v. State of Uttar Pradesh, hence, it is held that if the substratum of FIRs is same, then mere addition of a few provisions in subsequent FIR does not justify it as being a distinct incident. In State of Rajasthan v Bhagwan Das, where multiple FIRs, with same subject-matter, have been filed in different jurisdictions and hence, falling in jurisdictions of different courts, Section 186 of the Code will be roped in to prevent unnecessary harassment of the accused and directions will be issued to stop the proceedings in other courts
3. Closing / Quashing Of FIR By Police Inspector SHO: The Circular allowed the SHO to close the FIR which is unfit as per E FIR circular. As per SC Order only High Court can quash FIR under CRPC 482
The Hon'ble Apex Court in State of Karnataka vs. Muniswami [AIR 1977 SC 1489] held that the section envisages three circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice.”
JUDGE JMFC NOT TO FOLLOW UNCONSTITUTUIONAL CIRCULAR AND DIRECT POLICE TO SUBMIT REPORT UNDER CRPC 173
The effect of circulars was considered in Bengal Iron Corporation v. CTO, 1993 AIR 2414, 1993 SCR (3) 433. In the said decision, it was held that the clarification or circulars issued by the Central Government or the State Government are issued merely for the understanding of the statutory provisions. Those are not binding on the courts. The circulars cannot be treated in such a manner contrary to the provisions of law. There cannot be any estoppel against the statute.
In Hindustan Aeronautics Ltd. v. CIT , AIR 2000 SC 2178 it was held that the circulars or instructions given by the Board are no doubt binding in law on the authorities under the Act but when the Supreme Court or the High Court has declared the law on the question arising for consideration, it will not be open to a court to direct that a circular should be given effect to and not the .view expressed in a decision of the Supreme Court or the High Court.
In Commissioner of Central Excise v. M/s Ratan Melting Wire Industries: (2008) 13 SCC 1, the Constitution Bench has held as follows:
"Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the Court. It is for the Court to declare what the particular provision of statute says I.T.A.Nos.197 of 2019 & conn.cases and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law"
The E FIR CIRCULAR is not available in the list of DGP Circular so it is withdrawn and not in force. It is just to mislead people . Many circulars are withdrawn and circulars are only for office use but they cannot overide the act or SC /HC Order.