Chattisgarh High Court
Rajendra Dhar Dubey vs State Of Chhattisgarh on 16 June, 2022
WPCR 157/2021
-1-
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 157 of 2021
Judgment reserved on 11.11.2021
Judgment delivered on 16.06.2022
1. Rajendra Dhar Dubey S/o Late Bhairav Dhar Dubey Aged About 70
Years (Retired Government Employee), Resident of Village Bouripara,
Heera Hardware Gali, Ambikapur, District Surguja Chhattisgarh.
2. Smt. Kaushilya Devi W/o Rajendra Dhar Dubey Aged About 65 Years
Resident of Village Bouripara, Heera Hardware Gali, Ambikapur, District
Surguja Chhattisgarh.
3. Animesh Dhar Dubey S/o Rajendra Dhar Dubey Aged About 38 Years
Resident of Village Bouripara, Heera Hardware Gali, Ambikapur, District
Surguja Chhattisgarh.
4. Mithlesh Dhar Dubey S/o Rajendra Dhar Dubey Aged About 38 Years
Assistant Engineer (C.S.P.C.L.), Police Station Bilaspur, District Bilaspur
Chhattisgarh.
------Petitioners
VERSUS
1. State of Chhattisgarh Through Secretary, Department of Home Affairs,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur
Chhattisgarh.
2. Director General of Police Police Headquarters, Naya Raipur, District
Raipur Chhattisgarh.
3. Inspector General of Police Police Range, Surguja, District Surguja
Chhattisgarh.
4. Superintendent of Police Ambikapur, District Surguja Chhattisgarh.
5. Station House officer Police Station Kotwali, Ambikapur, District Surguja
Chhattisgarh.
6. Ravindra Kumar Dhar Dubey S/o Late Loknath Dhar Dubey Aged About
49 Years R/o Harra Tikra, Ambikapur, District Surguja Chhattisgarh.
-------Respondents
For Petitioners : Mr. Pushpendra Singh Baghel, Advocate For Respondent-State : Mr. Vinod Tekam, Panel Lawyer For Respondent No. 6 : Mr. Govind Dewangan, Advocate SB: Hon'ble Shri Parth Prateem Sahu, Judge C.A.V. JUDGMENT
1. Petitioners have filed this writ petition with the following reliefs:
"10.1 That, the Hon'ble Court may kindly be WPCR 157/2021 -2- pleased to direct the Police Authority to explain the proper reason for registering false and fabricated FIR against the petitioners.
10.2 That, the Hon'ble Court may kindly be pleased to quash the FIR registered against the petitioners in crime no. 34/2021 u/s 419, 420, 467, 468 & 120-B of IPC.
10.3 That, the Hon'ble Court may kindly be pleased to issue a writ of mandamus or any appropriate writs/order directing the respondent no. 1 to 5 not to take any coercive step against the petitioners till the final disposal of the writ petition.
10.4 Any other relief, which may be deemed fit and proper in the facts and circumstances of the case, may also be allowed, in the interest of justice."
2. Brief facts relevant for disposal of this petition are that police of police station Ambikapur, district Ambikapur, Surguja, registered FIR bearing crime No. 34/2021 based on the written report dated 10.08.2020 by complainant Ravindra Kumar Dubey (Respondent 6) for offence defined under Sections 419, 420, 467, 468 and 120-B of IPC. The allegations levelled in the complaint are to the effect that the petitioners No. 1 and 2 are uncle and aunt and petitioners No. 3 and 4 are cousin brothers of Respondent No. 6/ complainant. Petitioners approached Respondent No. 6 stating that Petitioner No. 1 is suffering with kidney ailment and doctor has suggested for transplantation of his kidney. Petitioners No. 2 to 4 were not found to be fit to donate their kidneys to Petitioner No. 1 and it is Respondent No. 6 only found fit to donate kidney, and can save life of Petitioner No. 1. Petitioners have proposed him that they would transfer a piece of land in his name, construct house on it and also to take care of his family as well as make arrangement of education of his children. WILL was executed by Respondent No. 1 bequeathing portion of land in favour of Respondent No. 6. He was taken to Post Graduate Institution (PGI), Lucknow, showing Respondent No. 6 to be son of Petitioners No. 1 and 2 got his WPCR 157/2021 -3- kidney transplanted to Petitioner No. 1. After some time, petitioners have sold the land of which WILL was executed in his favour and have also stopped taking care of his family. The WILL which was executed in favour of Respondent No. 6 was cancelled by Petitioner No. 1 by executing WILL cancellation deed before the Sub-Registrar, Ambikapur dated 28.01.2012. Based on the written report, aforementioned FIR was registered for the offence as mentioned above against all the petitioners.
3. Mr. Pushpendra Singh Baghel, learned counsel for petitioners would submit that Petitioner No. 1 was suffering with kidney ailment. Doctor recommended for transplantation of his kidney but unfortunately due to mismatch of necessary medical requirements, petitioners No. 2 to 4 were not found fit to donate their kidneys to Petitioner No. 1. Respondent No. 6 being nephew of Petitioner No. 1, when came to know, he with his own will, donated his one kidney to Petitioner No. 1 and in the month of January 2007 procedure of transplantation of kidney was successfully completed. Respondent No. 6 earlier on the same allegations have lodged complaint with police station Bhatgaon district Surajpur on 23.01.2013 (Annexure P-2) and also before the Superintendent of Police, Surajpur on 31.01.2013 (Annexure P-3). When the police have not taken any action on the complaint, Respondent No. 6 filed complaint application under Section 200 of CrPC before the Court of jurisdictional Magistrate, Surajpur making allegation of commission of offence defined under Sections 420, 467, 468, 120-B and 109/34 of IPC. Learned Magistrate dismissed the complaint application on 23.08.2014 which was put to challenge by fling a revision before the Court of Second Additional Sessions Judge, Surajpur which also came to be dismissed vide order dated 09.04.2015. After dismissal of revision, complainant/ petitioner filed WPCR 157/2021 -4- miscellaneous petition under Section 482 of CrPC before the High Court, registered as Cr.M.P. No. 503/2015, which was withdrawn on 17.09.2019 vide Annexure P-7 reserving liberty to file complaint before the appropriate authority. Once the complaint filed on the same allegations was dismissed by reasoned order by the Magistrate after applying its mind considering material produced before him and the oral evidence of complainant, the subsequent FIR is not maintainable which was lodged by the complainant on same allegations after dismissal of complaint case and also the revision on merits by the Magistrate and Court of Additional Sessions Judge. Petitioner suppressing material fact of dismissal of earlier complaint by Magistrate, revision by Sessions Judge and order of High Court, again lodged fresh report before other police station at Ambikapur in the year 2020. In lodging new report, Respondent No. 6 has not mentioned of earlier complaint filed before the police station, Bhatgaon, Surajpur, complaint case filed before the jurisdictional Magistrate and also the dismissal of complaint as well as revision by the Magistrate and Additional Sessions Judge, respectively, on merits. He also contended that the High Court while exercising its power under Section 482 of CrPC in a criminal miscellaneous petition challenging the order of dismissal of Criminal Revision also came to the conclusion that there is no merit in the Criminal Miscellaneous Petition (Cr.M.P.) and therefore the same was withdrawn wherein the only observation is made of granting liberty to file complaint before the appropriate authority. He contended that the appropriate authority as observed by High Court in an order passed in Cr.M.P. would not mean another report before the other police station. The second/ another complaint at different police station on same facts and allegation is an abuse of process of law and is not sustainable in the eyes of law. On the aforementioned grounds he submits that the subsequent FIR No. WPCR 157/2021 -5- 34/2021 registered against petitioners be quashed.
4. Learned counsel for petitioners placed his reliance on the judgment passed by Hon'ble Supreme Court in case of T.T. Antony vs. State of Kerala and others passed in Appeal (Crl.) No. 689/2001 decided on 12.07.2001 and in case of Kapil Agrawal and others vs. Sanjay Sharma and others passed in Criminal Appeal No. 142/2021 decided on 01.03.2021.
5. Mr. Govind Dewangan, learned counsel for Respondent No. 6, while opposing the submissions of learned counsel for petitioners would submit that when Petitioner No. 1 was taken to hospital and the medical requirements of other family members found to be unfit to donate their kidney, Respondent No. 6 was taken to hospital who was found suitable and fit to donate his kidney to Petitioner No. 1. Petitioners in lieu of donation of his kidney executed one WILL bequeathing piece of land and have given assurance of constructing house over it, taking care of his family and education of his children but when transplantation was successfully done and Petitioner No. 1 got well, petitioners turned down from their words and assurance and sold the land bequeathed in his favour by executing registered sale deed. Petitioner No. 1 also executed WILL cancellation deed, stopped taking care of his family. Petitioners by playing fraud, prepared forged and fabricated documents which was complained to the concerned police station and when FIR was not registered, complainant filed complaint case in the court of judicial Magistrate which came to be dismissed. Thereafter, revision against the dismissal of complaint was also dismissed. Order of revision was put to challenge in Cr.M.P. No. 503/2015 before the High Court which was disposed of with liberty to approach appropriate authority for lodging FIR and therefore present report was lodged before the police station kotwali, Ambikapur, hence, no interference is WPCR 157/2021 -6- called for at this stage in registration of FIR. Interference in registration of FIR by High Court can be only in the rarest of rare case and instant petition does not fall within the category of rarest of rare case. The FIR is not an encyclopedia which must disclose all the facts and details relating to the offence reported. Significance of lodging of FIR is that the information given must disclose the commission of a cognizable offence. In support of his contentions, he placed reliance upon the judgment of Hon'ble Supreme Court in case of Satvinder Kaur vs. State (Govt. of NCT of Delhi) and another reported in (1999) 8 SCC
728. He also submits that the provision under Section 173(8) of CrPC provides for the power to investigate the matter and collect further evidence and to file supplementary charge-sheet, hence, there is not merit in this writ petition.
6. Mr. Vinod Tekam, learned State counsel for Respondents 1 to 5, would submit that based on the written report submitted by Respondent No. 6, FIR was registered which is under investigation, hence, at this stage of ongoing investigation, petitioners are not entitle for the relief of quashment of FIR.
7. I have heard learned counsel for the parties and also perused the documents placed on record.
8. There is no dispute in the facts of the case that Respondent No. 6 made allegation against petitioners of playing fraud, preparing forged documents for getting kidney transplantation to Petitioner No. 1, selling of property bequeathed in his favour by executing a WILL and further cancellation of the WILL by executing another deed for cancellation of WILL was reported to concerned police station, S.H.O. police station Bhatgaon, district Surajpur on 23.01.2013. When no action was taken, report was lodged before the Superintendent of Police on 31.01.2013. WPCR 157/2021 -7- Respondent No. 6 realizing that no action was taken by police on his complaint has filed complaint case before the Judicial Magistrate, 1 st Class, Surajpur on 22.02.2013 against petitioners, making allegations of commission of offence under Section 420, 467, 468, 120-B, 109/34 of IPC. The complaint application is filed along with application for taking documents on record by Respondent No. 6 as Annexure D-2. The complaint application filed before the jurisdictional Magistrate was processed for registration, statement of complainant was recorded and the Magistrate came to conclusion that there is no sufficient grounds for proceeding and dismissed the complaint. The order of dismissal of complaint on the stage of registration was put to challenge by way of filing a revision before the Second Additional Sessions Judge, Surajpur which also came to be dismissed on merits affirming the order passed by Chief Judicial Magistrate (CJM), Surajpur. The order of dismissal of revision was put to challenge before the High Court under Section 482 of CrPC which was withdrawn with liberty to file complaint before the appropriate authority.
9. Perusal of complaint would show that petitioners came to the house of complainant at village Anrokha, police station Bhatgaon, district Surajpur and asked him to donate kidney to Petitioner No. 1 and offered him transfer of piece of land in his favour by executing a WILL. The contents of written report before police station Bhatgaon, application for complaint filed before the CJM, Surajpur and the contents of FIR under challenge are one and the same.
10. In the aforementioned facts of the case, the question for consideration is whether after dismissal of complaint case by the CJM, recording of finding that there are no sufficient grounds for proceeding which was not disturbed till proceeding before High Court, registration of FIR on the same allegations before another police station will be sustainable or WPCR 157/2021 -8- not?
11. The law with regard to filing of subsequent complaint after dismissal of first complaint is well settled by Hon'ble Supreme Court by holding that there is no specific bar in filing of second complaint on same allegations but the second complaint is to be entertained only in exceptional circumstances. Hon'ble Supreme Court in case of Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 has observed that for entertaining second complaint exceptional circumstances must exist and held thus:
"48. ...Therefore, if he has not misdirected himself as to the scope of the enquiry made under Section 202 of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, i.e., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into Allah Ditta v. Karam Baksh (AIR 1930 Lahore 879); Ram Narain Chaubey v. Panachand Jain ((AIR 1949 Pat 256); Hansabai Sayaji Payagude v. Ananda Ganuji Payagude (AIR 1949 Bom 384); Doraisami Aiyar v. Subramania Aiya (AIR 1918 Mad 484). In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above-quoted and adopted the opinion of Macleam, C.J. in Queen Empress v. Dolegobind Dass (ILR (1901) 28 Cal 211), affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee (ILR (1901) 28 Cal 652). It held, therefore, that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming."WPCR 157/2021 -9-
12. In case of Bindeshwari Prasad Singh vs. Kali Singh reported in (1977) 1 SCC 57, Hon'ble Supreme Court has held that it is now well settled that the second complaint can lie only on fresh facts or even on previous facts only if a special case is made out. In case of Mahesh Chand vs. B. Janardhan Reddy and Anr reported in (2003) 1 SCC 734, Supreme Court again reiterated that second complaint on the same facts could be entertained only in exceptional circumstances e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
13. Hon'ble Supreme Court in case of Kapil Agrawal (supra), considering the issue of registration of FIR has held thus:
"6. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.
6.1 As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing upon accused, in exercise of inherent powers, such proceedings can be quashed.
6.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves te inherent power of the High Court, as a superior court, to make such orders as are necessary (I) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers WPCR 157/2021 -10- under Article 226 of the Constitution.
7. Applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand, subsequent FIR filed by the respondent - original complainant can be said to be an abuse of process of law and the same to be brining pressure on the accused, which can be demonstrated from the following facts:
i) cheque no. 038611 was presented for encashment and the same came to be dishonoured by the banker of the complainant due to "insufficient funds";
ii) that the company - VBL served statutory legal notices upon the complainant under the provisions of the Negotiable Instruments Act;
iii) that thereafter complaint under Section 138 of the Negotiable Instruments Act has been filed by the company against the respondent-original complainant on 7.11.2014;
iv) that thereafter, after a period of three months, respondent no. 1 filed an application under Section 156(3) Cr.P.C. seeking registration of FIR against the appellants herein, i.e., in the month of February, 2015;
v) the learned Magistrate declined to order registration of FIR, but decided to inquire into the matter by treating the same as complaint case and granted respondent no. 1 - original complainant an opportunity of recording solemn affirmation under Section 200 Cr.PC. (order dated 23.03.2015). Order dated 23.03.2015 came to be set aside by the learned Sessions Judge vide order dated 8.7.2015 and the matter was remanded to the learned Magistrate with directions to pass a speaking order.
The same is pending before the learned Magistrate;
vi) that thereafter after a period of two years, R1 lodged the impugned FIR against the appellants with police station Loni Border, District Ghaziabad with the similar contents and allegations which were levelled in the application under Section 156(3) Cr.PC. In the FIR, the date of occurrence of the offence has been shown as 26.07.2017;
vii) it appears that R1 is not proceeding further with his application under Section 156(3) Cr.P.C. which is pending before the learned Magistrate since last five years;
viii) in the FIR, neither there is any reference to the application under Section 156(3) Cr.P.C. which is pending before the learned Magistrate, nor there is a reference of the complaint under Section 138 of the NI Act.
WPCR 157/2021-11-
Under the circumstances, the impugned FIR is nothing but an abuse of process of law and can be said to be filed with a view of harass the appellants."
14. If the case at hand is tested in view of the law laid down by the Hon'ble Supreme Court wherein it is held that the second complaint though not barred after dismissal of the first complaint under Section 203 of CrPC but for maintaining and entertaining second complaint it is made mandatory that exceptional circumstances must exist.
15. Perusal of the written report filed before the police station Bhatgaon, district Surajpur on 23.01.2013, complaint case filed before the Judicial Magistrate, Surajpur of not registering FIR on the complaint dated 23.01.2013 and the contents of FIR lodged based on the complaint dated 10.08.2020 would show that allegations and facts are one and the same. There is no mention of additional fact or any exceptional circumstances rising for lodging subsequent FIR before the police station. In fact, bare reading of the contents of FIR in question would show that Respondent No. 6 has not mentioned about lodging of earlier report before police station Bhatgaon, filing the complaint case before the judicial Magistrate and its dismissal, dismissal of revision by Sessions Judge challenging the order of dismissal of complaint case and further the Criminal Miscellaneous Petition filed before High Court challenging order of revision was dismissed as withdrawn. Hon'ble Supreme Court in case of State of Haryana vs. Bhajanlal reported in (1992) Suppl. (1) SCC 335 has laid down certain principles for quashing of FIR/ criminal proceedings wherein the grounds under which the interference can be made has held that, High Courts in the interest of justice can pass such orders as may be necessary to prevent abuse of process of law or otherwise to secure the ends of justice.
WPCR 157/2021-12-
16. Hon'ble Supreme Court in case of Kapil Agrawal (supra) considering that there is no mention of proceeding under Section 156(3) of CrPC pending before the Magistrate Court. Nor is there any reference of complaint under Section 138 of Negotiable Instruments Act, held that filing of FIR to be an abuse of process of law and with a view to harass the appellant(s).
17. As no exceptional circumstances are mentioned in the FIR, contrary Respondent No. 6 has suppressed the earlier proceedings which travelled upto High Court and respondent lost in all forums, was material fact. In the opinion of this Court, lodging of FIR on same facts, and absence of any new material or exceptional circumstance will fall within the category of abuse of process of law. Hence, I am of the considered view that the course adopted by Respondent No.6 of filing report again in the year 2020 before another police station suppressing the material facts of dismissal of criminal complaint case on same allegations in the year 2014 which was maintained upto High Court, is an abuse of process of law.
18. For the foregoing observation and reasons, writ petition is allowed and FIR bearing No. 34/2021 registered at police station Ambikapur, District Ambikapur, Surguja, Chhattisgarh is hereby quashed.
Sd/-
(Parth Prateem Sahu) Judge .P.a.w.a.n.