1.0 Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicants herein original accused to quash and set aside the impugned FIR being CRINo.257 of 2005 lodged with the Chowkbazar Police Station, Surat, filed by respondent no.2 herein original complainant for the offences under Sections 427, 444 and 114 of the Indian Penal Code for the alleged to have been happened on 29.10.2005 at about 22 p.m.
2.0 Respondent no.2 hereinoriginal complainant has lodged the impugned FIR against the applicants for the offences under Sections 427, 444 and 114 of the Indian Penal Code alleging inter alia that accused persons for entering into the premises of the complainant which she was occupied as tenant and damaged the said property. That being aggrieved and dissatisfied with the impugned FIR, the applicantsoriginal accused have preferred the present Criminal Application under Section 482 of the Code of Criminal Procedure.
3.0 Having heard Shri Kharadi, learned advocate for the applicants, it appears that the applicants have sought / prayed to quash and set aside the impugned FIR solely on the ground that in respect of the same offence two complaints came to be filed, one by respondent no.2 herein which has been registered as CRINo257 of 2005 and another complaint lodged by the brother of respondent no.2, which was registered as CRI No.255 of 2005 and in the FIR filed by the brother of the respondent no.2original complainant the charge sheet was filed against the applicants and thereafter the applicants are acquitted by the learned JMFC, Surat in Criminal Case No. 921 of 2005 and therefore, the impugned FIR which is second FIR / complaint for the same offences is nothing but an abuse of process of law and the Court. Shri Kharadi, learned advocate for the applicants has submitted that when with respect to the same offence two FIR have been registered and pursuant to the one of the FIR the trial is already over and applicants are acquitted , the applicants should not be unduly harassed by subjecting them to second trial and therefore, it is requested to allow the present Criminal Miscellaneous Application.
4.0 Application is opposed by Shri Dabhi, learned APP appearing on behalf of the respondent State. It is submitted that in another case the applicants are acquitted not on merits. It is submitted that, it appears that the applicants entered into the settlement with the brother of the respondent no.2original complainant who appears to be the cotenant and therefore, the learned Judge has acquitted the applicants. It is submitted that as such the charge sheet was filed against the applicants in the said FIR, however in view of the settlement only, the applicants came to be acquitted. It is submitted that even in the present case the learned Magistrate has not accepted “C” Summary Report submitted by the Investigating Officer and has directed to issue process against the applicants for the offence under Sections 427,444 and 114 of the Indian Penal Code by order dated 5.1.2006 and the said order is not challenged by the applicants. Therefore, it is requested to dismiss present application.
5.0 Heard the learned advocates for the respective parties at length. As stated hereinabove, the applicants have sought / prayed to quash and set aside the impugned FIR being CRINo.257 of 2005 solely on the ground that with respect to very offence one another complaint was filed by the brother of the respondent no.2 original complainant being CRINo255 of 2005 and the charge sheet was filed against the applicants arising of the said FIR and the applicants came to be tried by the learned JMFC in Criminal Case No.921 of 2005 and the applicants are acquitted and therefore, the applicants should not be unduly harassed by subjecting them to second trial. However, it is required to be noted that applicants are acquitted by the learned JMFC, Surat in Criminal Case No.921 of 2005 not on merits. It appears that the brother of the respondent no.1original complainant who happened to be the cotenant entered into the settlement with the applicants and due to said settlement the learned JMFC, Surat acquitted the applicants. The settlement between the brother of the respondent no.2original complainant as such cannot bind respondent no.2 hereinoriginal complainant . As stated above, the applicants are not acquitted by the learned JMFC in Criminal Case No.921 of 2005 on merits. Under the circumstance, on the ground that the applicants are acquitted by the learned JMFC, Surat in Criminal Case No.921 of 2005 and therefore, impugned FIR deserves to be quashed and set aside, cannot be accepted.
6.0 It is also required to be noted that in the present case initially the Investigating Officer has submitted “C” Summary Report which has not been accepted by the learned JMFC and the learned JMFC by order dated 5.1.2006 has directed to issue process against the applicants for the offences under Sections 427, 444 and 114 of the Indian Penal Code and the same is not under challenge. Under the circumstance and considering facts stated herinabove, no case is made out to quash and set aside the FIR in exercise the powers under Section 482 of the Code of Criminal Procedure.
7.0 In view of the above and for the reasons stated above, petition fails and same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Adinterim relief if any stands vacated forthwith.
kaushik sd/ (M.R.SHAH, J.)