Allahabad High Court
Rahul And Others vs State Of U.P. And Another on 6 January, 2020
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 28 Case :- APPLICATION U/S 482 No. - 2102 of 2008 Applicant :- Rahul And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.S. Shah Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajeev Misra,J.
Heard Mr. S.S. Shah, learned counsel for applicants and learned A.G.A. for State. In spite of service of notice, no one has put in appearance on behalf of opposite party No. 2.
This application under section 482 Cr. P. C. has been filed challenging charge sheet dated 23.6.2004 submitted in Case Crime No. 20 of 2004 under Sections 498-A, 323, 504, 506 and 406 IPC and sections 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Meerut and consequential proceedings of Criminal Case No. 666 of 2005 (State Vs. Rahul and others), under sections 498-A, 323, 504 IPC and sections 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Meerut, pending in the Court of C.J.M., Meerut.
It transpires from record that marriage of applicant No. 1 Rahul was soleminized with opposite party No. 2 Kusum in accordance with Hindu Rites and Customs. Subsequently, on account of marital discord, relationship between the parties became strained. Opposite party No. 2 initiated criminal proceedings against the present applicants by filing Complaint Case No. 322/9 of 2002 (Smt. Kusum Vs. Rahul and others). After recording of statements of complainant and her witnesses in terms of Sections 200/202 Cr. P. C. concerned Magistrate summoned the accused persons namely Rahul, Ram Pal, Smt. Harveeri and Rekha, vide summoning order dated 19.9.2002, under Sections 498-A I.P.C. and Sections 3/4 Dowry Prohibition Act. After expiry of a period of one year, opposite party No. 2 lodged an F.I.R. dated 17.4.2004 which was registered as Case Crime No. 20 of 2004, under Sections 498-A, 323, 504, 506, 406 I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Meerut. However, in the aforesaid F.I.R., opposite party No. 2 clearly concealed the factum regarding lodging of above mentioned complaint case. Police upon completion of statutory investigation of above mentioned case crime number in terms of Chapter XII Cr. P. C. submitted a charge sheet dated 23.06.2004 against the applicants under Sections 498-A, 323, 506 I.P.C. and Sections 3/4 Dowry Prohibition Act. Upon submission of aforesaid charge sheet, cognizance was taken by the Magistrate concerned, vide cognianze taking order dated 15.2.2005. Consequently, Criminal Case No. 666 of 2005 (State Vs. Rahul and others) came to be registered. Feeling aggrieved by aforesaid proceedings, the applicants have now approached this Court by means of present application under Section 482 Cr. P. C. Learned counsel for applicants submits that under the scheme of Code of Criminal Procedure, aggrieved person has a remedy to lodge an F.I.R. or file a compliant. An aggrieved person cannot avail both the remedies for same offence. Elaborating his submission, learned counsel for applicants submits that in the present case, opposite party No. 2 has already filed a complaint case and on same set of facts, but without disclosing the fact relating to filing of compliant case, she has lodged First Information Report giving rise to above mentioned criminal case. He, therefore, submits that subsequent lodging of F.I.R. by opposite party No. 2 on same cause of action amounts to an abuse of process of Court.
Placing reliance upon judgement of Apex Court in the case of T.T. Anthony Vs. State of Kerala, 2001 (6) SCC, 181, he submits that second F.I.R. in respect of same offence is barred in law. According to learned counsel for applicant though ratio laid down in above noted case applies to second F.I.R., but the same can be applied in present case also, as after filing a complaint case, aggrieved person cannot lodge an F.I.R. for the same offence. He has, further, relied upon judgement dated 27.11.2019 rendered by learned Single Judge of this Court in Criminal Misc. Application No. 8355 of 2009 (Md. Yusuf Khan Vs. State of U.P. and another), wherein aforesaid aspect has been considered in detail. For ready reference, paragraph 28 of judgement (supra) is reproduced herein under:-
" The instant case is required to be examined in the light of the aforesaid settled legal propositions for which it is necessary for this Court to examine the facts and circumstances giving rise to both the first information reports and the test of sameness is to be applied to find out whether both the first information reports 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 first information report is liable to be quashed. However, in case, the contrary is proved, where the version in the second first information report is different and they are in respect of the two different incidents/crimes, the second first information report is permissible. In case in respect of the same incident the accused in the first information comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted."
On the combined strength of aforesaid, it is urged by learned counsel for applicants that criminal proceedings initiated by opposite party No. 2 cannot be sustained as they are barred by law.
Learned A.G.A. has tried to support the criminal proceedings initiated against applicants. He submits that police upon investigation of the case has submitted a charge sheet and the veracity of same can only be decided during course of trial. As such, no case for interference is made out.
Having heard learned counsel for parties at length and in detail, this Court finds that admittedly opposite party No. 2 has filed a complaint, upon which Court below has proceeded to examine the opposite party No. 2 and her witnesses under Sections 200/202 Cr. P. C. Thereafter concerned Magistrate summoned the accused persons i.e. the present applicants in complaint case file by opposite party No. 2.
However, without disclosing the fact regarding filing of complaint, opposite party No. 2 lodged an F.I.R. without specifically pointing out distinction in the facts relating to lodging of the complaint and subsequent F.I.R. Thus this Court has no hesitation to conclude that lodging of F.I.R. subsequently by complainant opposite party No. 2 on same set of facts and without disclosing the grounds to justify subsequent lodging of F.I.R. is an act which amounts to an abuse of process of Court.
For the reasons given above, present application succeeds and is allowed. Consequently, charge sheet dated 23.06.2004 submitted in Case Crime No. 20 of 2004 under Sections 498-A, 323, 504, 506 and 406 IPC and sections 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Meerut and consequential proceedings of Criminal Case No. 666 of 2005 (State Vs. Rahul and others), under sections 498-A, 323, 504 IPC and sections 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Meerut, pending in the Court of C.J.M., Mathura, are hereby quashed.
Order Date :- 6.1.2020 HSM