Wednesday, February 2, 2022

Successive FIRs: Gujarat High Court Explains 'Test of Sameness' & 'Test of Consequence'

The Gujarat High Court recently delved into the 'Test of Sameness' and the 'Test of Consequence' that are relevant while determining the legality of a 'second FIR'.

Second FIR or successive FIR in respect of the same incident or crime is not permissible in law. However, to determine whether the second impugned FIR is based on the same offence and arises out of a different transaction, the above two tests may be applied.

In the instant case pertaining to two FIRs registered against the Managing Director of the Gujarat State Land Development Corporation under the Prevention of Corruption Act, 1988, Justice Gita Gopi also propounded the requirements of proving an offence under Section 13(1)(e) of the PC Act.

Test of Sameness

The Supreme Court in Babubhai and Ors. Vs. State of Gujarat explained that 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 Anju Chaudhary Vs. State of U.P. and Ors. it was explained that 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 can be registered.

"So, when the version of second FIR is different, and when in respect of 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," Justice Gopi held.

Test of Consequence

In Amitbhai Anilchandra Shah Vs. Central Bureau Of Investigation And Anr., the Consequence Test was explained thus: if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR, then offences covered by both the FIRs are the same and accordingly, the second FIR will be impermissible in law.

It was held that the offences covered in both the FIRs shall have to be treated as a part of the first FIR. Furthermore, merely because two separate complaints had been lodged does not mean that they could not be clubbed together and one charge-sheet could not be filed.


The Petitioner, an Accused, filed a Petition under Article 226 of the Constitution to seek the quashment of a 2018 FIR under Section 482 of CrPC for offences under Section 13(1)(e) and 13(2) of the PC Act. 

Basis an intelligence report against the officers of GSLDC of receiving commission and bribes and a consequent raid, an FIR was registered under Sections 8,10 and 13(2) of the PC Act. The Petitioner was registered as Accused No. 2 in this FIR. While chargesheet was filed in the first FIR, another FIR was also filed with the same set of allegations against the Petitioner.

The Petitioner contends that the second FIR is a repetition of the investigation which has taken place in the first FIR where chargesheet has already been filed. Registration of another FIR within 3 days of the first FIR with the same set of allegations is an abuse of law and hence, the FIR deserves to be quashed.

The Respondent contended that the first FIR was registered in connection with the raid conducted and the events which unfolded during the whole search. However, the second FIR was registered under Sections 13(1)(e) and 13(2) of the PC Act with regard to the possession of cash and gold articles by the Petitioner.


After applying the 'Test of Sameness' and the 'Test of Consequence', the Court came to a conclusion that the second FIR was not the consequence of the offence alleged in the first FIR and therefore, the second FIR could not have been clubbed with the first FIR.

The Court noted that the accused in the first FIR, one KC Parmar, was asked about the money found from the drawer of his table and he put up a claim that he was collecting the money on behalf of the Petitioner. So on that version of co-accused, the first FIR was registered.

So far as the second FIR is concerned, the same pertained to unaccounted money and gold article found in the possession of the petitioner.

"It was not the say of the petitioner that it was the money given to him by coaccused, K.C. Parmar, or that from the money so given to him, he had purchased the gold pendant and earring," the Court further added concluding that the two incidents are distinct and two different FIRs have been rightly registered.

The Court also concluded that the first FIR was registered against the Petitioner along with the co-accused. While the second FIR was registered against the Petitioner as a public servant who could not satisfactorily account for his pecuniary resources or property disproportionate to his known sources of income. 

While explaining this distinction, the Court laid down the ingredients of the offence under Section 13(1)(e), namely:

  1. the prosecution must prove that the accused is a public servant,
  2. the nature and extent of the pecuniary resources or property which are found in his possession, 
  3. it must be proved as to what were his known sources of income i.e. known to the prosecution and,
  4. it must prove quite objectively that the resources or property found in possession of the accused were disproportionate to his known source of income.

Accordingly, the Bench dismissed the Petition.

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