IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NOS.6990/2014 C/W 785/2016, 6752/2017 IN CRL. P. NO.6990/2014 BETWEEN:
1. MR.A.K.A.MAJEED AGED ABOUT 68 YEARS S/O LATE K.P. ABDUL REHMAN RESIDING AT NO. 6 & 7, 1ST MAIN 1ST BLOCK, KORAMANGALA BANGALORE- 560 034 2. MS.SALMA MAJEED AGED ABOUT 32 YEARS D/O AKA MAJEED R/AT NO. 6 & 7, 1ST MAIN 1ST BLOCK, KORAMANGALA BANGALORE- 560 034 ...PETITIONERS (BY SRI.A.K.A.MAJEED, PARTY-IN-PERSON) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS STATION HOUSE OFFICER KORAMANGALA POLICE STATION KORAMANGALA BANGALORE- 560 034 2. MRS.RADHA NAGARAJ W/O A.S.NAGARAJ R/AT NO. 1205, 11TH CROSS, HSR LAYOUT, SECTOR-I BANGALORE- 560 102.
…RESPONDENTS (BY SRI.N.S.VISHWANATHA, ADV. FOR R2 SRI.S.CHANDRASHEKARAIAH, HCGP FOR R1) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’NLE COURT MAY BE PLEASED TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER, IN THE COURT OF THE VIII ACMM, BANGALORE IN CRIME NO.292/2014 ON THE FILE OF THE FIRST RESPONDENT AND ETC., IN CRL. P.NO.785/2016 BETWEEN:
SMT.SAROJA AGED ABOUT 46 YEARS D/O LATE MUNISWAMY R/AT NO. 6 & 7, 1ST MAIN 1ST BLOCK, KORAMANGALA BANGALORE- 560 034 (BY SRI.N.S.VISHWANATHA, ADV.) AND:
1. STATE OF KARNATAKA BY KORAMANGALA POLICE KORAMANGALA BANGALORE- 560 034 2. SMT.RADHA NAGARAJ W/O A.S.NAGARAJ R/AT NO.1205, 11TH CROSS HSR LAYOUT, SECTOR-I BANGALORE- 560 102 ….PETITIONER ….RESPONDENTS (BY SRI.CHANDRASHEKARAIAH, HCGP FOR R1) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’NLE COURT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN CR.NO.292/2014 OF KORAMANGALA POLICE REGISTERED FOR THE OFFENCES P/U/S 506, 509, 504, 420 OF IPC ON THE FILE OF THE VIII A.C.M.M., BANGALORE AND ETC.
IN CRL.P. NO.6752/2017 BETWEEN:
1. MR.A.K.A.MAJEED AGED ABOUT 70 YEARS S/O LATE K.P.ABDUL REHMAN 2. MS.SAROJA AGED ABOUT 48 YEARS D/O LATE MUNISWAMY BOTH ARE R/A NO. 6 &7, 1ST MAIN 1ST BLOCK, KORAMANGALA BENGALURU- 560 034 … PETITIONERS (BY SRI.A.K.A.MAJEED, PARTY-IN-PERSON) AND:
1. STATE OF KARNATAKA CCB (W&N SQUAD) (KORAMANGALA PS) BENGALURU-560 002 2. MRS.VANI K.S.
W/O MR.K.R.SUBRAMON RAJU NO.231, DOMODARAJ’S ESTATE SARAKI MAIN ROAD, J.P.NAGAR BENGALURU- 560 076 ...RESPONDENTS (BY SRI.N.S.VISHWANATHA, ADV. FOR R-2 SRI.S.CHANDRASHEKARAIAH, HCGP FOR R1) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE PARTY-IN-PERSON PRAYING THAT THIS HON’NLE COURT MAY BE PLEASED TO QUASH FIR NO.741/2014 DATED: 14.10.2014 OF KORAMANGALA POLICE STATION BEFORE THE IV A.C.M.M. BENGALURU AND THE ENTIRE PROCEEDINGS IN C.C.NO.26539/2016 ON THE FILE OF 1 A.C.M.M., BENGALURU AND ETC.
THESE PETITIONS ARE COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These three petitions have been filed to quash the FIR registered in Crime Nos.292/14 and 741/14.
2. For the purposes of convenience, the details of criminal petitions which is referable to each of the accused, their status, FIR numbers and other incidental information which would be necessary for disposal of these petitions are tabulated herein below:
RANK OF PARTIES
3. I have heard the arguments of Sri. A.K.A. Majeed, party appearing in person, who has been arraigned as accused no.1 in both the crime numbers and Sri. N.S.Vishwanatha, learned counsel appearing for 2nd petitioner in Crl.P.No.6990/14 and Crl.P.No.6752/17 who also appears for the sole petitioner in Crl.P.No.785/16. Sri Raghavendra, learned HCGP appearing for the State.
BRIEF BACKGROUND:
4. Crime No.292/14 came to be registered against petitioners in Crl.P.No.6990/2014 and Crl.P.No.785/2016 for the offences punishable under Sections 504, 506, 509 and 420 IPC on the strength of a complaint dated 02.04.2014 lodged by 2nd respondent-Smt Radha Nagaraj and one Smt.Vani K S whereunder they have alleged that accused nos.1 and 2 had entered into an agreement of sale with 2nd respondent for selling immovable property situated at Koramangala on 20.10.2013 and vendor had borrowed amount from State Bank of India, Koramangala Branch, which had not been repaid and as such bank had taken possession of the property and in order to tide over the said situation, vendors had approached the complainants to clear the loan for which complainants had agreed and also claimed to have cleared said loan to State Bank of India. It was further alleged that vendors though had consented to sell the said property after the complainants paid Rs.3.50 crores to Bank, yet did not do so and accused nos.1 and 2 with criminal intent had cheated them by not registering the property in their favour. It is further alleged on 2.4.2014 in the evening they had been to house of accused No.1 - Mr.Majeed to have negotiations in that regard and at that point of time accused No.1 and his maid servant Smt.Saroja (accused No.3) attacked Mrs.Vani Raju (2nd complainant) and also molested her by touching her and also tearing her blouse and tried to hug her. They have further alleged that maid servant Saroja (accused No.3) came out with a knife and threatened them. It is further alleged that Smt. Vani Raju was crying and she was mentally upset with accused No.1 and as such, they requested the jurisdictional police to interfere and settle the matter. A complaint came to be lodged on these grounds. In the same complaint Smt Vani K S, who is also signatory to it has supplemented her allegation by stating that she was badly hurt by Mr.Majeed and his maid servant Saroja and Mr.Majeed had pulled her hand and blouse, tore it and ill treated her. Said complaint came to be registered at 9.15 p.m. on 2.4.2014 as Crime No.292/14 for the offences punishable under Sections 504, 506, 509 and 420 IPC. On account of proceedings having been stayed before this Court in these criminal petitions, the investigation has not been proceeded with or in other words, charge sheet is not yet filed.
5. Smt Vani K S @ Vani Raju, who is a signatory to complaint dated 02.04.2014 filed another complaint on 27.09.2014 with Koramangala Police Station reiterating and referring to her earlier complaint dated 02.04.2014 and requesting first complaint to split up and a separate FIR be lodged against Mr.Majeed (accused No.1) and Ms.Salma Majeed (accused No.2) alleging thereunder that for sale of his house he has received Rs.2.30 crores out of total sale consideration of Rs.5.30 crores and had refused to register the property and when requested to register the property by receiving balance sale consideration he had become violent and was attempting to sell the property to Mrs.Radha Nagaraj and Mr.Nagaraj, who were also present at his house on 2.4.2014. Said complaint came to be registered in Crime No.741/2014 for the offences punishable under Sections 341, 354, 406 and 420. On completion of investigation, charge sheet in C.C.No.26539/2016 has been filed against A.K.A.Majeed (accused No.1) for the offences punishable under Sections 341, 323, 354, 504 and 506 read with Section 34 IPC and against Smt.Saroja (accused No.2) for the offences punishable under Sections 341, 504, 506 read with Section 34 IPC. Hence, all the accused are before this Court for quashing of said proceedings.
6. It is the contention of Mr. A.K.A. Majeed, party appearing in person that by a reading of complaints it would indicate that ingredients of Section 420 of IPC is conspicuously absent or in other words, said provision is not attracted and as such, filing of FIR on the basis of first complaint and filing of charge sheet based on second complaint is not called for and continuation of said proceedings against the petitioners would be an abuse of process of law. He would further contend that invoking of other Sections by the Investigating Authority is erroneous and illegal, since by no stretch of imagination those provisions would be attracted to the allegations made in the complaint. He has sought to highlight the inconsistencies and contradictions from the documents available on record and statement made by the witnesses, which has been recorded during the course of investigation.
6.1 He would further contend that second complaint dated 27.09.2014 lodged by Smt. Vani K.S. for splitting up of complaint dated 02.04.2014 is not maintainable and police would not get jurisdiction to register second FIR in respect of same incident and as such, registering of second FIR is not called for. Hence, he prays for quashing of the same.
6.2 He would further elaborate his submissions by contending that dispute between the parties namely, accused and complainant relates to sale of immovable property, which has now landed the parties before the Civil Court namely, the complainant herself has filed a suit in O.S. No.4171/2015 before the City Civil Court, Bengaluru seeking relief of specific performance of agreement of sale dated 21.10.2013 and as such, prosecuting the petitioners for the alleged offence, which is not there, would be an abuse of process of law. Hence, he prays for quashing of the proceedings. He would also draw the attention of the Court to paragraph 28 of the plaint in O.S.No.4171/2015 to buttress his contentions namely, complainant herself is admitting about the alleged incident of 02.04.2014, which ought to be resolved before Civil Court and there are no grounds whatsoever available for the criminal prosecution being continued against petitioners. Hence, by relying upon following judgments, he prays for allowing the petition and quashing of the proceedings:
1. 2015 CRI. L.J.2455 Vesa Holding P.
Ltd and Anr. V State of Kerala and Ors.
2. 2013 AIR SCW 245 Anju Chaudhary V State of U.P.
3. AIR 2001 Supreme Court 2637 T.T. Antony V State of Kerla & Ors.
4. 2012 (129) DRJ 217 Delhi High Court Francis Miranda V Govt of NCT of Delhi & Anr.
5. 2001 SCC Online Del 1328 Delhi High Court Michael Lebon V The State & another 6. AIR 2004 Supreme Court 283 State of H.P. V Sukhvinder Singh 7. AIR 2017 Supreme Court 2595 Lovely Salhotra and Anr. V State of NCT of Delhi and Anr.
8. AIR 2006 Supreme Court 2780 M/s. Indian Oil Corporation V M/s. NEPC India Ltd. and ors.”
7. Sri. N.S. Vishwanath, learned counsel appearing for petitioner No.2 in Crl.P.Nos.6990/2014 and 6752/2017 as also petitioner in Crl.P.No.785/2016 would support the arguments advanced by petitioner No.1 and in addition, he would submit that allegations made in first complaint would not be applicable to petitioner No.2 (Ms. Salma Majeed in Crl.P.No.6990/2014) insofar as offences under Sections 504, 506 and 509 of IPC are concerned and likewise, invoking Section 420 of IPC against Ms. Saroja (Accused No.3 in Crime No.292/2014) would also not be applicable and as such, continuation of proceedings against them would be an abuse of process of law. He would submit that even a bare reading of the complaint does not indicate that there is any sufficient ground to charge them for the offence punishable under Section 420 of IPC and mere use of words “deceit” or “cheating” by itself is not a ground to proceed further in the matter particularly, in the background of the dispute having a complete civil flavour. He would also contend that second FIR registered against Ms. Saroja in Crime No.741/2014, which relates to the same incident of 02.04.2014, is clearly contrary to the principles laid down by the Hon’ble Apex Court in the matter of T.T. Antony Vs. State of Kerala and others reported in AIR 2001 SCC 2637. Hence, he prays for quashing of the proceedings by allowing the petition.
8. Sri. S. Chandrashekariah, learned HCGP appearing for State would submit that initiation of the prosecution against accused persons is based on material which is available with the Investigating Authorities. If at all there is any ground which is available to the petitioners, they would be at liberty to seek for discharge before the Trial Court after charge sheet being filed or material being placed to establish that none of the ingredients invoked by the prosecution are attracted. Hence, contending this Court should not exercise its inherent power of jurisdiction to quash the proceedings at the threshold and investigation should be permitted to be carried out, he prays for dismissal of the petition. He would also submit that registration of second FIR was on account of prayer made in the complaint by Smt. Vani K.S. who sought for splitting up of her first complaint and as such, investigation has been proceeded on the basis of second complaint and charge sheet has been filed only against those persons who are involved in the alleged incident of molestation or attacking the complainant and not against others. Hence, he would submit that second FIR is maintainable and prays for dismissal of the petition.
9. Having heard learned counsel appearing for parties and on perusal of records, it would be necessary to state at the outset that Section 482 of Cr.P.C. saves the inherent power of this Court as a superior Court to make such orders as necessary to prevent abuse of any Court or to secure ends of justice. The Hon’ble Apex Court in Gian Singh Vs. State of Punjab and Another reported in (2012) 10 SCC 303, has held that inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accordance with the guideline engrafted in such power namely to secure the ends of justice or to prevent abuse of process of any Court. It has been held:
“61. The position xxxx xxx xxx xxx xxx thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”
10. It is trite law that this Court will have to embark upon examining whether ends of justice would be met by exercising inherent power to quash criminal proceedings under Section 482 of Cr.P.C. If this Court finds that civil proceedings is sought to be brought under the criminal liability on facts obtained and is of the opinion that continuation of proceedings would be an abuse of process of law, necessarily proceedings would be quashed. Thus, basis for quashing the proceedings would be that the continuation of criminal proceedings would amount to an abuse of process of Court or abuse of process of law.
11. It is well settled that power vested in this Court under Section 482 Cr.P.C. would be sparingly used by ensuring due process of law is not scuttled. Hon’ble Apex Court in the case of Binod Kumar & Others Vs State Of Bihar & Another reported in (2014)10 SCC 663, has held that at the stage of considering prayer for quashing of a complaint or FIR, High Court would not embark upon conducting an enquiry as to the probability, reliability or genuineness with regard to allegations made in the complaint and has held where averments made in the complaint is taken at its face value, ingredients of the criminal offence alleged cannot be discerned and the Court would not hesitate to quash the proceedings but on the other hand, if it is found that averments so made would disclose there is an element of criminal liability, Courts would not quash the proceedings.
12. Principles relating to exercise of jurisdiction under Section 482 Cr.P.C. has been stated by Hon’ble Apex Court in Indian Oil Corporation Vs NEPC India Ltd. reported in (2014)10 SCC 663 and it reads as under:
“12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs.
Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs.
Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State (NCT of Delhi), [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Singh [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in the 9 complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out:
(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not”
13. In a given set of facts and circumstances a commercial transaction or contractual dispute, apart from giving rise to cause of action for seeking remedy in civil law, may also involve the criminal acts. The nature and scope of civil proceedings are different from criminal proceedings and mere fact that complaint relates to a commercial transaction or breach of contract for which a civil remedy is availed, is not by itself a ground to quash the criminal proceedings. The only test which has to be adopted is to find out as to whether the allegations in the complaint disclose the criminal offence or not.
14. Keeping in view above referred salutary principles in mind, facts on hand are required to be examined in the background of complaints in question. The parties are ad idem with regard to agreement of sale dated 20.10.2013. However, with regard to Clauses found in the said agreement, there is a dispute between the parties. If this aspect is delved upon in this petition, it is likely to prejudice the rights of either parties in the pending civil disputes. As noticed herein above, in a given case, if civil proceedings had the flavour of a criminal act also, in such circumstances initiation of two different proceedings viz., (1) to resolve the civil dispute civil Court has been approached; and (2) criminal proceedings for criminal acts has been initiated, then they would be independent, separate and distinct proceedings, which will have to be examined, evaluated, adjudicated by two independent and different forums. As such, for all time to come, on the ground if the dispute is of a civil nature, criminal law set in motion by one of the parties to such contract cannot be a ruse to direct the parties to resolve the disputes in the civil proceedings and give a complete go by to the criminal action that had been instituted or initiated for an incident in respect of a commercial transaction. Where the parties have taken recourse to civil proceedings and at the same time, the criminal law has also been set in motion, it has to be examined as to whether there is any said criminal act alleged in the complaint and such acts constitute cognizable offence. If the answer is in the affirmative, then necessarily the criminal law set into motion will have to reach its logical end.
15. In respect of a commercial contract, if the parties were to resort to assaulting each other, it cannot be gain said that dispute which has arisen is relating to civil contract and as such, criminal law set into motion will have to be quashed. Thus, it all depends on facts and circumstances of each case. There cannot be any straight jacket formula in this regard and facts obtained in each case will have to be evaluated and conclusion has to be arrived as to whether the dispute is having both criminal and civil flavour for adjudication to be done in two different forums.
16. At the cost of repetitive reading of first complaint, as already noticed herein above, it would clearly indicate that in so far as the allegations made by the complainant against accused No.1(Mr. A.K.A. Majeed) would definitely attract Sections 504, 509 and 506 of IPC. This opinion is expressed only for limited purpose and examining as to whether the investigation should be proceeded further or not, it is not to be understood by the learned Magistrate that an opinion has been formed by this Court on merits of the case. Insofar as accused No.2 (Ms. Salma Majeed) is concerned, invoking of Sections 504, 506, 509 of IPC and invoking of Section 420 of IPC by the prosecution against accused No.3 (Ms. Saroja) is concerned, is not justified. However, it requires to be noticed that charge sheet is yet to be filed and it is for the Investigating Authority to take appropriate steps in this regard at the time of filing of the charge sheet against such of the persons for such of those offences in respect of which the ingredients of the respective sections can be invoked. Hence, same is left at it with these observations.
17. Insofar as, registration of second FIR in Crime No.741/2014 is concerned, it would not detain this Court for too long to accept the contention raised by petitioner No.1 appearing in person and learned counsel appearing for petitioner No2. Hon’ble Apex Court in T.T. Anthony Vs. State of Kerala and Others reported in AIR 2001 SCC 2637, has held that registration of second FIR in respect of same offence or offence committed in the course of same transaction is not only impermissible but it violates Article 21 of the Constitution of India. To determine whether the offence alleged ought to be treated as a part of the same transaction, Hon’ble Apex Court in the matter of C. Muniappan and others Vs. State of Tamilnadu reported in (2010) 9 SCC 567, has held that “consequence test” may be taken aid of. The said test prescribes that if an offence forms part of second FIR arising out of same offence in respect of which FIR is already filed or registered and if offence covered by both the FIR’s are one and same, second FIR is impermissible in law. In other words, offence covered in the second FIR shall have to be treated as a part of first FIR. However, if second FIR pertains to different incident, second FIR would be permissible.
18. A careful observation of the dicta laid down by the Hon’ble Apex Court in T.T. Anthony’s case would indicate that there is a bar to the registration of second FIR according to Cr.P.C. whenever the second and subsequent information related to the same cognizable offence or same occurrence or same incident giving rise to one or more cognizable offence. In this background, when second FIR registered in Crime No.741/2014 against the petitioners, which was on the basis of complaint dated 27.09.2014 when perused, it would leave no manner of doubt in the mind of this Court that incident alleged by the complainant relates to the incident that occurred on 02.04.2014 only and complainant herself in unequivocal terms has stated:
“I write to refer to my complaint dated 02.04.2014 wherein my complaint be split and separate FIR be lodged xxx xxx xx”.
19. Thus, complainant herself was clear in her mind and thought that complaint which was lodged by her on 27.09.2014 was relating to the same incident that occurred on 02.04.2014 and she wanted to elaborate or explain her stand/allegations against the accused persons in the second complaint lodged on 27.09.2014.
20. Thus, nothing prevents the Investigating officer who was investigating Crime No.292/2014 to record the statement of the complainant Smt. Vani K.S. (who is the second complainant in the complaint dated 02.04.2014) and proceed further to add any other provision of IPC, which the investigating authorities may arrive at the conclusion and would be at liberty to invoke such of the provision of IPC against the accused persons the Investigating Officer may deem fit. In fact, Section 173(8) of Cr.P.C. also enables the investigating agency to further investigate in respect of the offence even after filing of the report under Section 173(2) of Cr.P.C upon obtaining any further evidence, oral or documentary and in such circumstances also the Investigating Officer is empowered to forward to the jurisdictional Magistrate further report regarding such evidence in the Form prescribed. Thus, investigating agency being vested with such power to investigate further, even after filing of a report under Section 173(2) of Cr.P.C, complainant cannot be heard to contend that in respect of the incident which had occurred on particular date for which FIR had already been registered in Crime No.292/2014, yet the Investigating Officer would not be empowered to record further statements and it would be in violation of Article 21 of the Constitution of India.
21. In other words, on reading of both complaints, the irresistible conclusion which has to be drawn in the instant case would be that it relates to the same incident and in fact, in the second complaint which has been filed by Smt. K. S. Vani (who is 2nd complainant in complaint dated 02.04.2014), she has virtually reiterated the earlier incident, but has tried to amplify as to how the accused No.1 attempted to outrage her modesty by pulling her blouse and tearing it. Thus, it is a further statement relating to the same incident and as such the investigating authorities could not have registered 2nd FIR in respect of the same incident. However, on the basis of 2nd complaint which can be treated as a further statement in Cr.No.292/2014, the investigating authorities would be at full liberty to implicate the accused persons for such of those offences which they deem it proper to be invoked against the petitioners, if not already done.
22. Insofar as 1st FIR which came to be registered in Cr.No.292/2014 is concerned, provisions of Sections 504, 506 and 509 of IPC invoked against accused No.2 would not be applicable at all or in other words, same is not attracted, in as much as there is not even an iota of allegation made against accused No.2 in that regard. Likewise, reading of said complaint as well as further statement of complainant would not disclose Section 420 of IPC being attracted or being invoked against Mrs. Saroja/A-3, who indisputably, even according to the complainant, had only wielded a kitchen knife and threatened the complainants. As such, continuation of proceedings against these two accused namely, accused No.2 and accused No.3 for the offences punishable under Sections 504, 506, 509 and 420 of IPC respectively, would not be called for or in other words continuation of proceedings against them for the said offences is liable to be quashed as could be seen from the material placed on record which would prima facie disclose there is not even a whisper with regard to any purported act which would attract said provisions and same being invoked by the police is illegal or in other words, continuation of proceedings for said offences against them would be an abuse of process of law.
Hence, I proceed to pass the following:
ORDER 1. Crl.P.Nos.6990/2014 and 785/2016 are hereby allowed- in-part. Prosecution initiated against accused No.2 (Mrs. Salma Majeed) and accused No.3 (Mrs. Saroja) for the offences punishable under Sections 504, 506, 509 and 420 respectively, are hereby quashed. However, it is made clear that in respect of other offences for which they have been alleged to have committed, proceedings shall continue.
2. Crl.P.No.6752/2017 is hereby allowed and FIR registered in Crime No.741/2014 against the petitioners for the offences punishable under Sections 341, 354, 406 and 420, is hereby quashed subject to observations made hereinabove vide paragraph 20.
SD/-
JUDGE BRN/MBM/RD