Informant Can Be Arrayed As Accused If Investigation Reveals His Complicity, No Need To Register Separate FIR: Orissa High Court

The Orissa High Court has recently clarified that the informant of a First Information Report (FIR) can be arrayed as an accused if investigation reveals his complicity or any incriminating material points towards his involvement in the crime.

A Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash further made it clear that there is no need on the part of the Investigating Officer (IO) to register a separate FIR merely to implicate the original informant as an accused or to file charge-sheet against him. In the words of the Court –

“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.”

The Court was hearing a criminal appeal against conviction for commission of offences under Sections 302 and 201 of the IPC. On the night of 13/14.08.1996, the appellant discovered the dead body of his adoptive father Jadu Sahu (D-1) and severely injured adoptive mother Pitei Sahu (D-2). He immediately called his neighbours and proceeded to the police station for lodging an FIR.

In the written complaint, he mentioned that the deceased persons used to be a squabbling couple, who often fought with each other. He further alleged that they had a heated quarrel the previous night during which they sworn to kill each other. Based on such allegations, the FIR was registered arraying D-2 as accused.

However, during the course of investigation, the Investigating Officer (IO) got credible evidence indicating involvement of the appellant in commission of the crime. Thus, a second FIR was registered arraying the appellant as well as his second-wife as accused persons. Though the wife was arrested, the appellant absconded.

Upon completion of investigation, charge-sheet was filed against the appellant and his wife. In his absence, the trial was held against the appellant's wife wherein she was acquitted. Subsequently, the appellant surrendered and a separate trial was held against him. He was found guilty for commission of offences under Sections 302/201 IPC.

One of the grounds raised to challenge the conviction was that of registration of a second FIR for the same offence. It was contended on behalf of the appellant that the second FIR was unwarranted and action taken on the basis of such FIR is an illegality, which cannot be sustained in the eyes of law. It was further suggested that in case of complicity of the appellant was traced, he could have been arrayed as an accused in the same case, instead of registering separate case.

Therefore, the question which inter alia arose for consideration was whether registration of a second FIR by the IO is an incurable defect which shall render the entire investigation and proceedings against the appellant a nullity.

In order to answer the above question, the Court referred to the landmark judgment of the Supreme Court in T.T. Antony v. State of Kerala & Ors. (2001) which held the following while discussing on the maintainability of second FIR –

“From the above discussion, it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C., only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus, 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.”

Having regard for the aforesaid proposition of law, the Court was of the view that even when the IO found certain incriminating materials against the appellant revealing his complicity in the crime, he should have arrayed him as an accused in the same case, notwithstanding the fact that he is the informant. There was absolutely no need to register a second FIR. Nevertheless, 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.”

Investigation can't be questioned merely because IO was informant

The appellant further challenged the investigation carried out by the IO on the ground that he (the IO) was himself the informant in the second FIR. However, the Court nixed such contention observing that such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the IO and not merely because he was the informant.

“A police officer who has recorded F.I.R. on the basis of information received is competent to take up investigation and submit final form/final report. There is nothing in the provision of Criminal Procedure Code which disqualifies him from taking up investigation of the cognizable offence. 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,” it added.

Case Title: Prasanta Kumar Sahoo v. State of Odisha

Case No: CRA No. 229 of 2000

Date of Judgment: October 09, 2025

Counsel for the Appellant: Mr. Sashibhusan Das, Dr. Biplab S. & Mr. S. Padhi, Advocates

Counsel for the State: Mr. Partha Sarathi Nayak, Addl. Govt. Advocate

Citation: 2025 LiveLaw (Ori) 130

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