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2014 DIGILAW 1287 (RAJ)

Ashish v. Arora VS State of Rajasthan

2014-07-01

RAGHUVENDRA S.RATHORE

body2014
JUDGMENT 1. - This criminal misc. petition has been filed by the accused petitioners with the prayer that FIR No.26/2012 registered at police station Mahila Thana, Bharatpur on 11.1.2012 for the offence under sections 498A and 406 IPC, may be quashed and set aside and the investigation officer be directed not to arrest the petitioners. Further it is prayed that any other appropriate relief may be granted in favour of the petitioners and if this court comes to the conclusion that the FIR is to be investigated, then in the alternative the investigation may be changed from the present I.O. and direction be given to investigate the matter by an officer of the rank of Superintendent of Police. 2. It is pertinent to note that the instant misc. petition was filed in the month of July, 2012 and it came up for hearing before this court, for the first time, on 13.2.2014 after removal of defects on 21.1.2014 as pointed out by the registry at the time of filing of the petition. Earlier a criminal misc. petition (646/2012) was filed by the same accused petitioners in the month of February, 2012 with the following prayer: "It is therefore, humbly prayed that this criminal miscellaneous petition may kindly be allowed and the FIR No.26/12 police station Mahila Thana, Bharatpur dated 11.1.2012 for offence under section 498A, 406 IPC may kindly be quashed and set aside." The said petition was disposed of by the High Court on 28.2.2012 as under: "The I.O. who is present in person has made a statement that he has already called the accused petitioners as well as respondent no.2 in the police station for councelling. He wants further councelling of the accused petitioners and the respondent and if on that date if compromise could not be arrived at in between the parties, he undertakes not to arrest the accused petitioners. At this stage, learned counsel for the accused petitioners has made a statement that later on if the accused petitioners and the respondent not arrive at a compromise, he should be given liberty to move fresh petition under section 482 Cr.P.C. for quashing of FIR. In view of above, the criminal misc. petition is disposed of with the undertaking made by the I.O. and the liberty to the learned counsel for the petitioners regarding filing fresh petition as aforesaid." 3. When the present misc. In view of above, the criminal misc. petition is disposed of with the undertaking made by the I.O. and the liberty to the learned counsel for the petitioners regarding filing fresh petition as aforesaid." 3. When the present misc. petition was listed before this court on 13.2.2014, the same was got adjourned. Thereafter on 14.2.2014, the counsel for the petitioners was directed to supply a copy of the petition to the counsel for the complainant respondent who had appeared on his own, as no notices were issued by the court till that time. Later on 24.2.2014, the learned public prosecutor was directed to call for the I.O. along with case diary on the next date. The SHO, Mahila Thana, Bharatpur, was present in the court on 26.2.2014, but no one had appeared on behalf of the petitioners. The matter was then adjourned for four weeks. 4. It was on 31.3.2014 that the petition was listed before this court, as similar other matters were also transferred from Court no.7 which was not available. After hearing the parties a preliminary question arose, as to whether the accused could file another misc. petition by invoking the jurisdiction of the court under section 482 Cr.P.C. for quashing of FIR when similar petition in respect of same FIR had been decided. Learned counsel for the petitioners ultimately sought time to show the law on the point. Therefore, the matter was kept on 3.4.2014 at 1.15 p.m. in chambers for that limited purpose, because this court was having a regular roster in Division Bench. Thereafter on 3.4.2014, learned counsel for the petitioners had submitted the case law in support of his contention that a criminal misc. petition having been once decided, the impugned order can be challenged by way of another misc. petition.The counsel for the petitioners had, in the garb of placing the copies of some judgments on record, filed a misc. application purporting to be in respect of maintainability as well as taking documents on record. Such a method adopted by the counsel for the petitioners was wholly misconceived and not in accordance to the request which he had made on 31.3.2014. application purporting to be in respect of maintainability as well as taking documents on record. Such a method adopted by the counsel for the petitioners was wholly misconceived and not in accordance to the request which he had made on 31.3.2014. As a matter of fact, both the parties were finally heard and the counsel for the petitioner had prayed for time to submit the case law for which the court had ordered that the same be done before the next date, when order in the present case was to be dictated. More over, when one looks to the prayer made in the misc. application filed in the garb of submitting the case law, it is surprising that the petitioners had prayed that if there is conflict in the view of the co-ordinate bench, then the matter may be referred to the larger bench for decision. On one hand, the learned counsel for the petitioners had submitted that the earlier misc. petition was not decided on merits and liberty was granted for filing another misc. petition and, on the other hand, he has prayed that if there is conflict of view from the co-ordinate bench, then the matter may be referred to the larger bench. 5. The only question which requires consideration in this case is, when a misc. petition challenging the same FIR has already been decided without granting the relief sought by the accused, then another misc. petition for quashing the same FIR is maintainable or not. 6. A look to the misc. petition filed earlier, the file of which was called by this court, would go to show that the same was filed against the FIR No.26/2012 and it was impugned by the petitioners with the prayer, as given above, to quash and set aside the same. Similarly in the present misc. petition, the inherent power of this court has been sought to be invoked for quashing of the same FIR (26/2012). The accused petitioners have sought to invoke the inherent power of this court raising specific grievance and with a specific relief i.e. to say against FIR No.26/2012 and for quashing the same. The inherent power of this court has not been sought to be invoked in respect of proceedings in a matter which is continuing and subsequent petition can be filed on the ground of long pendency. The inherent power of this court has not been sought to be invoked in respect of proceedings in a matter which is continuing and subsequent petition can be filed on the ground of long pendency. Even at the time of earlier petition, an effort was made for counselling between the parties and the same had failed then the counsel for the accused petitioners ought to have argued the matter on merit and requested the court for deciding the same accordingly. When the earlier misc. petition was primarily filed for quashing of FIR, then on failure of counselling between the parties, there was no question of making a request on behalf of the accused for seeking liberty to move a fresh petition. It was only by way of resolving the dispute that an effort for counselling was made and when the same was not successful, then petition filed before the court has to be argued on merits. There was no reason what-so-ever for the counsel for the accused petitioners to have made the request for filing another petition under section 482 Cr.P.C. for the purpose of quashing of the impugned FIR. More over, when the specific relief was sought by the accused petitioners and the same was not granted by the court by an order, then to seek liberty to file fresh petition is just an after-thought so as to avoid any decision on merits at the first instance. 7. So far as the case law cited by the counsel for the accused petitioners is concerned, it would suffice to say that the same are not at all applicable in the facts and circumstances of the present case. The case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and others- AIR 1975 SC 1002 is a one where the facts of that case were totally different which is clearly borne out from the observation made by the Hon'ble Supreme Court, which reads as under: "The earlier application which was rejected by the High Court was an application under Section 561A of the Cr.P.C. to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561A to quash the proceeding." The Hon'ble Court further observed: ".......... whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years........" In the case of Krishna Narain Lal and another v. State of Bihar & another- AIR 2000 SC 3612 , the Hon'ble Apex Court was dealing with a matter where earlier application under section 482 Cr.P.C. for quashing of the FIR was dismissed in default of appearance. The present case is not of such a nature.In the case of A.M. Berry v. Ravi Arora and others- 1992 Cr.L.J. 1327 , the Delhi High Court was considering a matter under Section 482 Cr.P.C. for quashing of the criminal proceedings against the accused whereas in the earlier petition a challenge was made against the issuance of summons. Such is also not the situation in the present case.The larger bench of the Allahabad High Court in the case of Raj Narain and others v. The State- AIR 1959 All 315 , was considering a matter where the issue involved was, as to whether the High Court had power to invoke, review, recall or alter its own earlier decision in a Criminal Revision and rehear the same? This is again not the situation in the present case. 8. Therefore, the case law cited on behalf of the accused petitioners is of no help to him. In the instant case, the first misc. This is again not the situation in the present case. 8. Therefore, the case law cited on behalf of the accused petitioners is of no help to him. In the instant case, the first misc. petition was specifically for quashing the FIR No.26/2012 registered at police station Mahila Thana, Bharatpur and the same came to be decided on 28.2.2012 and admittedly the relief sought by the accused was not granted to him. Thereafter, the instant petition was filed in the month of July, 2012 and the same remained pending till February, 2014 when it came to be listed before the court for the first time, as the defects pointed out by the office had not been removed till that time. The circumstances of the present case indicate that the accused petitioners were only interested in delaying the investigation for some reason or the other, by filing the misc. petitions for quashing of the FIR, again and again. Such method adopted by the accused is only an after-thought. It appears that when prayer on behalf of the accused seeking liberty for filing fresh criminal misc. petition under section 482 Cr.P.C. was made with the object to have the opportunity of filing another petition against the same impugned FIR and for the same relief, on failure of counselling between the parties, the petitioners ought to have argued the matter on merits in the very first criminal misc. petition. 9. It may also be noted that the ulterior object of the petitioners is to delay the investigation on one pretext or the other which is also reflected from the fact that when the court had given him liberty for submitting the case law on the question of maintainability on the earlier date, a misc. application at the stage of dictation of order had come to be filed and that too with addition of the prayer which was initially made at the time of filing of this criminal misc. petition. As observed earlier, when it has been argued on behalf of the accused petitioners that the earlier misc. petition had not been decided on merits and liberty was sought for filing another then where lies the question for the accused petitioner to pray that if there is conflict in the view of the co-ordinate bench, then the matter be referred to the larger bench. petition had not been decided on merits and liberty was sought for filing another then where lies the question for the accused petitioner to pray that if there is conflict in the view of the co-ordinate bench, then the matter be referred to the larger bench. There is neither an issue worthy of reference to a larger bench nor rejection of the present misc. petition on the ground that it is second in number against the impugned FIR No.26/2012, involves a conflict of view of the co-ordinate benchs nor gives rise to a question to be referred to the larger bench. The question of changing of investigating officer is a matter to be deft with on the administrative side by the concerning officer of the police department for which the petitioner has to approach him. 10. Consequently, the preliminary objection with regard to maintainability of second criminal misc. petition against the same FIR has to be sustained and this misc. petition for quashing of FIR No.26/2012 registered at police station Mahila Thana, Bharatpur, for the second time, deserves to be and is dismissed. *******