Jharkhand High Court
Maimun Khatoon @ Maimun Nisha vs State Of Jharkhand on 25 January, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 825 of 2022
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1. Maimun Khatoon @ Maimun Nisha
2. Sheikh Sajid @ Sk Sajid
3. Sheikh Hakik @ Sk Hakik
4. Ajmeri Khatoon @ Ajmeri Bano
5. Anjum Khatoon @ Anjum Ara
6. Faiyaz Akhtar @ Mohammad Faiyaz Akhtar
7. Saba Khatoon @ Shaba Firdosh
8. Soni Khatoon @ Afrin Bano
9. Sheikh Sadab @ Sk Sadab
10. Sheikh Aasif @ Abdul Asif .... .... .... Petitioners Versus
1. State of Jharkhand
2. Sabba Khan @ Sabba Jabbi .... .... .... Opp. Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners: Mr. Sidhartha Roy, Advocate For the State : Ms. Priya Shrestha, A.P.P. For the O.P. No.2 : Mr. Zaid Imam, Advocate
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Order No.06 Dated : 25.01.2023 Instant petition has been filed for quashing of order dated 29.01.2022 passed by Chief Judicial Magistrate, Koderma whereby and whereunder prima facie case has been made out under Sections 498A, 34 of the Indian Penal Code and process have been directed to be issued against the petitioner/accused persons.
2. The petition has been filed on the ground that earlier on same allegation Purulia (T) P.S. Case No.23 of 2021 was registered on 03.03.2021 under Sections 498A, 323, 325, 326, 307, 34 of the I.P.C. and Section 4 of D.P. Act on the basis of written report lodged by this very complainant against these petitioners and after a week on 10.03.2021, instant petition has been filed on identical charges against same set of accused persons which is impermissible in view of ratio decided in the case of Krishna Lal Chawla & Others Versus State of U.P. & Another passed in Cr. Appeal No.283 of 2021 by Hon'ble Apex Court.
3. It is further submitted that entire family has been implicated in this case on the basis of general and omnibus allegation against the entire family members who are distant in-laws and are not living at the same place and there is no specific allegation against the petitioners in the complaint petition. Reliance in this regard has been placed in the case of Kahkashan Kausar @ 2 Sonam Versus The State of Bihar; 2022 SCC OnLine 162.
4. Learned APP assisted by the learned Counsel on behalf of informant submits that allegation in both the F.I.Rs. and the complaint petitions are different. The present complaint case has been filed because the complainant was assaulted after the institution of FIR incidence which has been specifically referred to in para 9 of the complainant regarding incidence that took place on 07.03.2021. There is concealment of the medical report of the complainant which was annexed with the original complaint petition, which has not been annexed with the instant criminal miscellaneous petition.
5. Having considered the rival submissions it is apparent that authority relied upon by the petitioner will not apply in this case. The fact situation of Krishna Lal Chawla (supra) is distinguishable from the present case, as in that case earlier a charge sheet has been submitted and thereafter concealing this the complaint was filed. The present case is not one, where two FIRs have been lodged with regard to the same incidence by the same informant/complainant against the same accused persons. Here the first case is a FIR and the second is a complaint.
6. Here the moot point for consideration is whether the complainant is forfeited of the right to file a complaint, once an FIR is instituted by him on almost the same fact situation?
7. This Court is of the view that there is no absolute bar to filing of complaint in such circumstance. There can be cases, where investigation is not being completed for one reason or the other and the victim of the offence has no option, but to file a complaint. Section 210 therefore mandates that the Magistrate to stay the inquiry or trial and call for a report in that regarding the matter from the police. The object of this provision is to obviate multiplicity of proceeding arising out of the same incidence and also to avoid conflicting findings in parallel judicial proceedings. It has been held in R.K. Khanna v. State; (2003) 11 SCC 758 that the High Court committed serious error in exercising its power under Section 482 CrPC in quashing the complaint case merely because the Magistrate had not exercised his powers by staying the complaint case under sub-section (1) of Section 210 CrPC and, therefore, the impugned order cannot be sustained.
What Section 210 of the Cr.P.C mandates has been succinctly laid down in the case of Kapil Agarwal v. Sanjay Sharma; (2021) 5 SCC 524 3 "16. Thus, as per Section 210 CrPC, when in a case instituted otherwise than on a police report i.e. in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 CrPC and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of CrPC."
8. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments".
It has been held in Pal v. State of U.P.; (2010) 10 SCC 123 "28. Although it will appear from the above that under Section 210 CrPC, the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report".
9. From the above it is manifest that merely because an FIR has been registered against the accused persons on almost similar facts, the subsequent complaint petition cannot ipso facto be quashed. The course to be adopted by the magistrate in such cases is laid down under Section 210 of the Cr.P.C.
10. The other pleas regarding the accused persons being falsely implicated cannot be considered at this stage. The petitioner shall be at liberty to raise these issues at appropriate stage.
11. The learned Magistrate shall proceed as per law laid down in Kapil Agarwal (supra) case.
The Criminal Miscellaneous Petition is accordingly dismissed.
(Gautam Kumar Choudhary, J.) Anit