Rajasthan High Court - Jodhpur
Smt.Nenu Devi & Anr vs State & Anr on 7 August, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
SB Criminal Misc. Petition No.2754/2011
Smt. Nenu Devi & Anr. Vs. State of Rajasthan & Anr.
(1)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
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JUDGMENT
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S.B. Criminal Misc. Petition No.2754/2011
Smt. Nenu Devi & Anr. vs. State of Raj. & Anr.
Date of Judgment :: 7th August, 2012.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.Rameshwar Dave, for the petitioners.
Mr.Panney Singh, PP, for the respondent State.
Mr.Rakesh Arora, for the respondent no.2.
...
BY THE COURT :
Heard learned counsel for the parties.
The instant misc. petition has been preferred by the petitioners seeking quashing of F.I.R. No.49/2011 registered against them at P.S. Kalyanpur, District Barmer for the offences under Sections 420 and 120B IPC, at the instance of the respondent no.2.
Learned counsel for the petitioners contends that the instant FIR is a second FIR on the same facts, hence, the same deserves to be quashed. The contention of learned counsel is that the complainant/respondent no.2 filed an F.I.R. against the petitioners on 14.12.2009 which was registered at P.S. Kalyanpur as FIR No.78/2009 for the SB Criminal Misc. Petition No.2754/2011 Smt. Nenu Devi & Anr. Vs. State of Rajasthan & Anr. (2) offences under Sections 420, 467, 468, 471 and 120B IPC, with the allegation that the complainant was having a residential plot with construction in the Village Kalyanpur, the patta whereof was in the name of her husband late Madan Singh. The plot was alleged to be measuring 30' x 40' and the patta no.29 thereof had been issued allegedly on 15.12.1974. The complainant alleged that the petitioner no.1 Smt. Nenu Devi by procuring forged title documents sold the plot with the intention of dispossessing the complainant from the plot which she lawfully owned. The police after thorough investigation of the said F.I.R. submitted a Final Report in the Court of Judicial Magistrate, Balotra being F.R. No.25/2009. The investigating agency came to a conclusion that the complainant had filed a suit against the petitioner for cancellation of sale deed which was pending and the property had been validly sold by the petitioner no.2 Paras Kanwar to the petitioner no.1 Nenu Devi. The F.R. so submitted is admittedly still pending because adjournments are being sought for on behalf of the counsel for the complainant. The counsel for the petitioners has placed on record the certified copies of the order-sheets of the Court of Judicial Magistrate, Balotra and the next date fixed for filing of the protest petition is 11.10.2012.
Not resting satisfied with the earlier investigation, the complainant filed yet another complaint in the Court of SB Criminal Misc. Petition No.2754/2011 Smt. Nenu Devi & Anr. Vs. State of Rajasthan & Anr. (3) Judicial Magistrate, Balotra in relation to the very same transaction of the very same plot and with almost same allegations. The additional allegation which has been made in the instant FIR is that the accused Nenu Devi had filed a revision in the Court of Additional Collector, Barmer for cancellation of the complainant's patta but the Additional Collector dismissed the revision and found the plot in question to be that of the complainant. It is on the said basis that the second complaint was filed. The learned Magistrate forwarded the complaint to the Police Station, Kalyanpur and the police has registered FIR No.49/2011 for the offences under Sections 420 and 120B IPC against the petitioners.
Hence, the petitioners have filed the instant misc. petition seeking quashing of the impugned FIR on the ground that it is a second FIR on the same facts and cannot be permitted to be investigated.
Learned P.P. was directed to procure the status report and as per which, prima-facie offence under Sections 420 and 120B IPC has been found to be made out against the petitioners.
It is relevant to mention here that in the status report, the investigating agency has conveniently concealed the factum of the earlier FIR for the same transaction and submission of the FR in pursuance thereof.
SB Criminal Misc. Petition No.2754/2011 Smt. Nenu Devi & Anr. Vs. State of Rajasthan & Anr. (4) Having considered the arguments advanced at the bar and after going through the material available on the record, it is evident that the complainant is already prosecuting the petitioners by way of the earlier FIR No.78/2009 wherein the police had given FR finding that no offence was made out against the petitioners. The complainant has already preferred a protest petition which is pending consideration before the competent court. Thus, the complainant has the remedy of raising her grievance regarding the petitioners being liable for the offences of cheating, fraud etc. in the proceedings already pending before the Court where the FR is pending.
Without any hesitation, this Court cannot permit a disgruntled complainant to misuse the process of the Criminal Court by launching one prosecution after another simply because the earlier prosecution has failed. What is significant is that the complainant in the impugned FIR has conveniently omitted the fact of her filing FIR earlier against the petitioners and that the said FIR has resulted into a FR. Had this fact been mentioned, probably the court below would not have forwarded the complaint to the investigating agency under Section 156(3) Cr.P.C. and would have proceeded as per Section 210 Cr.P.C. That apart, even the investigating agency has fallen into the same error and investigated the FIR without even considering the fact SB Criminal Misc. Petition No.2754/2011 Smt. Nenu Devi & Anr. Vs. State of Rajasthan & Anr. (5) regarding investigation of the earlier FIR conducted at the same police station and in relation to the same allegations.
The Hon'ble Apex Court in the case of T.T. Antony vs. State of Kerela & Ors. reported in AIR 2001 SC 2637 has held that a second or subsequent FIR on the same facts cannot be permitted to be continued as the same is contrary to the fundamental right against the double jeopardy as enshrined under Article 20 of the Constitution of India.
The upshot of the above discussion is that the instant misc. petition succeeds. The F.I.R. No.49/2011 registered against the petitioners at P.S. Kalyanpur, District Barmer and all subsequent proceedings pursuant thereto are hereby quashed.
Stay petition also stands disposed of.
(SANDEEP MEHTA), J.
S.Phophaliya