Bombay High Court
Gaba S/O. Uma Pawar And Others vs The State Of Maharashtra And Anr on 11 February, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3055 OF 2019
Gaba s/o Uma Pawar,
Age 70 years, Occupation Agriculture,
R/o At Post Sitanaik Tanda
Tq. Kannad Dist. Aurangabad.
And Other (12) ...Applicants.
VERSUS
The State of Maharashtra.
And Other (01) ...Respondents.
.....
Advocate for Applicants : Mr. K. F. Shingare.
APP for Respondent-State : Mr. P. G. Borade.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 11-02-2020.
ORDER :
1. Present application has been filed for invoking inherent powers of this Court under Section 482 of Code of Criminal Procedure for quashing the proceedings bearing Summary Criminal Case No.659 of 2014 pending before learned Judicial Magistrate, First Class at Kannad District Aurangabad, initiated by respondent No.2.
2. Heard learned advocate for applicants Mr. K. F. Shingare for applicants and learned Additional Public Prosecutor Mr. P. G. Borade ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 2 CriApln 3055-2019 for respondent - State.
3. Taking into consideration the submissions it is not even necessary to issue notice to respondent No.2 - the original complainant.
4. It has been vehemently submitted on behalf of the applicants that, the respondent No.2 had filed First Information Report bearing No.72 of 2014 dated 19-04-2014 with Kannad police Station against Narayan Goba Pawar, Dhanraj Goba Pawar, Joba Lalchandra Pawar and Mirabai @ Geetabai Shankar Rathod stating that, they have committed offence punishable under Section 324, 323, 504 read with 34 of the Indian Penal Code. It was in respect of incident that had taken place between 01.00 to 02.00 p.m. on 19-04-2014 in land Gut No.126 situated at Sitanaik Tanda. The police case has been initiated on the basis of said criminal case. However, the informant
- respondent No.2 filed private complaint bearing Summary Criminal Case No.659 of 2014 on 05-09-2014 against in all 14 persons alleging that, they have committed offence punishable under Section 504, 323, 324, 143, 147, 148, 506, 34 of Indian Penal Code. It is also stated to be in respect of the incident that had taken place between 01.00 to 02.00 p.m. on 19-04-2014 in land Gut No.126 ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 3 CriApln 3055-2019 situated at village Sitanaik Tanda. Therefore, when once already he had filed the First Information Report, second complaint was not maintainable. However, the learned Judicial Magistrate, First Class, has issued process against all the accused persons for the offence punishable under Section 323, 504, 506 read with 34 of the Indian Penal Code. The applicants cannot be directed to face the trial twice.
5. The learned Additional Public Prosecutor submitted that, both the proceedings are taken against different persons. Though four persons are common yet the complainant has stated that, since he had made allegations against the other accused also, police have not taken any action and, therefore, he has filed the said private complaint. Therefore, case is not made out to exercise inherent powers of this Court under Section 482 of the Code of Criminal Procedure for quashing the private complaint.
6. At the outset perusal of the First Information Report as well as the private complaint that has been filed by the respondent No.2 would show that, though he intended to lodge the report regarding the same incident, yet it is to be noted that, specific explanation has been given in the private complaint that though allegations were ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 4 CriApln 3055-2019 made by him against all the accused persons, police had recorded the First Information Report only against four persons. Even he had made a written complaint for not including the other accused persons. Accused No.14 is in fact the police officer in-charge of the Police Station and it is alleged that, he has conspired with the other accused, and had not taken action against the other accused persons than the four persons named in the First Information Report.
7. I would like to rely on the decision in Anju Chaudhary v. State of U.P. and Anr., 2012 STPL (Web) 772 SC. In the said case question of two First Information Reports on the same set of facts was involved and after taking note of catena of Judgments, the Hon'ble Apex Court, took note of T. T. Antony v. State of Kerala (2001) 6 SCC 181, and it was observed that, "The Court concluded that second FIR for the same offence or occurrence giving rise to one or more cognizable offences was not permissible."
However, the said Judgment in T. T. Antony's case was explained and clarified by the three Judge Bench of Apex Court in Upkar Singh v. Ved Prakash [(2004) 13 SCC 292]. Further similar view was then taken in Rameshchandra Nandlal Parikh v. State of gujarat [(2006) 1 SCC 732], wherein ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 5 CriApln 3055-2019 Hon'ble apex Court held that, "The subsequent FIRs cannot be prohibited on the ground that some other FIR has been filed against the petitioner in respect of other allegations filed against the petitioner."
Further Hon'ble Apex Court had occasion to deal with the situation where the FIR was a cryptic one and later on upon receipt of proper information another FIR came to be recorded which was a detailed one, Apex Court took view that no exception could be taken to the same being treated as FIR. Further in paragraph No.22 in Anju Chaudhary's case (Supra) following observation has been made, "22. In matters of complaints, the Court int eh case of Shiv Shankar Singh v. State of Bihar (2012) 1 SCC 130 expressed the view that the law does not prohibit filing or entertaining of a second complaint even on the same facts, provided that the earlier complaint has b3een decided on the basis of insufficient material or has been passed without understanding the nature of the complaint or where the com0plete facts could not be placed before the court and the applicant came to know of certain facts after the disposal of the first complaint. The Court applied the test of full consideration of the complaints on merits. In paragraph 18, the Court held as under : -
"18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 6 CriApln 3055-2019 could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit."
8. The legal position is very much clear that, two complaints are maintainable in respect of the same incident. Provided that, there is an explanation in respect of the first complaint in the second complaint. Here it appears that, there is explanation given by the complainant as to why he is filing a private complaint. He has not suppressed the fact that, he has already lodged the report with the police but according to him when the police had not taken proper cognizance of his complaint and against all the accused persons whose names he had disclosed, he says that he had no option but to file the private complaint. Therefore, the private complaint is definitely maintainable. Further we can take a note of provision of Section 210 of the Code of Criminal Procedure. Section 210 of Code of Criminal Procedure deals with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. This itself is sufficient to show that, two complaints are maintainable. The object of enacting Section 210 of the Code of ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 7 CriApln 3055-2019 Criminal Procedure is threefold:
"(i) it is intended to ensure that private complaints do not interfere with the Course of justice; (ii) it prevents harassment to the accused twice;
and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once." Sub-section (1) of Section 210 of the Code of Criminal Procedure gets attracted only when private complaint is filed before the investigation is completed by the police.
9. Here in this case it appears that, the investigation in respect of Crime No.72 of 2014 got completed by 26-06-2014 and the charge- sheet was forwarded, thereupon the case was registered as Regular Criminal Case No.122 of 2014. The private complaint has been filed on 05-09-2014. That means, the filing of the private complaint is subsequent to the completion of the investigation by police. Therefore, Sub-section (1) of Section 210 of Code of Criminal procedure is not applicable here. Sub-section (2) of Section 210 of Code of Criminal procedure envisages the amalgamation of two cases, but the necessary condition for such amalgamation is that, accused in both the cases should be common. Further steps were contemplated under Section 210 of the Code of Criminal procedure, as to whether the Magistrate can proceed with the private complaint ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 8 CriApln 3055-2019 or not. Important point to be noted is that, the process was issued against all the accused on 16-04-2014, and the present application is totally silent on the point, as to whether they had immediately agitated or challenged the said order of issuance of process against them in any higher Court or not. Now it is stated that since there is no progress in the matter, the proceedings are required to be quashed. Only on the said point, the proceedings cannot be quashed, every opportunity was available to the applicants to agitate the order of issuing of process or even to approach this Court immediately when the order of issuing process was passed. The legal course is still open for the applicants before the learned Magistrate and, therefore, when the equal efficacious remedy is available before the same Court, so also it becomes a fact in dispute as to whether the incident was committed by 04 accused persons or by 14 accused persons then this Court under its inherent powers under Section 482 of the Code of Criminal Procedure would be very much slow in quashing the proceeding. The Hon'ble Supreme Court in, State of Madhya Pradesh v. Yogendra Singh Jadon & Anr., (Criminal Appeal No.175 of 2020) (Arising Out of SLP (Criminal) No.172 OF 2017) has observed that, "The power under Section 482 of the Code of Criminal Procedure, ::: Uploaded on - 27/04/2020 ::: Downloaded on - 08/06/2020 22:08:40 ::: 9 CriApln 3055-2019 1973 cannot be exercised where the allegations are required to be proved in court of law."
Therefore, there is no merit in the present application, it stands rejected and disposed of accordingly.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-
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