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2021 DIGILAW 359 (JK)

Anil Saini v. Parkasho Devi

2021-07-27

PUNEET GUPTA

body2021
JUDGMENT : Puneet Gupta, J.-The present petition is treated as petition under Section 482 Cr.P.C keeping in view the facts of the case. 2. The petitioners herein, accused in a complaint filed by the respondent herein, have preferred the present petition against the order dated 24.12.2019 passed by the learned 1st Additional Munsiff (Forest Magistrate), Jammu on the grounds that the directions passed under Section 156(3) Cr.P.C. fail to indicate any flaw or fault in the investigation carried out by the Police Station, Domana, Jammu pursuant to the order dated 27.06.2019 passed by the said court; that the order passed by placing reliance that as one FIR has been entertained by the Police Station, Domana it was the duty of the police station to register the counter FIR is against provisions of law; that the magistrate having given the directions under section 156(3) Cr.P.C. vide order dated 27.06.2019 cannot give another direction under Section 156(3) Cr.P.C. as given in the impugned order; that the directions passed by the Court put the petitioner to harassment and embarrassment at the behest of the respondent who had in fact committed the crime against the petitioners herein. The court while passing the directions impugned in the present petition has not recorded that the offences are made out against the petitioners herein. 3. Mr. Sunil Sethi learned senior counsel appearing on behalf of the petitioners herein has submitted that the order impugned is not backed by the provision of Code of Criminal Procedure. The second order for registration of the FIR could not be passed as the same direction had already been passed by the Court vide order dated 27.06.2019. The other contention raised is that the learned trial Court could not frame opinion with regard to the merits of the alleged occurrence which took place on 11.06.2019 in respect of which the FIR No.248/2019 came to be registered and the complaint also came to be filed by the respondent herein Parkasho Devi. 4. Mr. Jasbir Singh Jasrotia the learned counsel appearing on behalf of the respondent has submitted that there is nothing wrong in the impugned order passed by the court as the same has been passed after observing the procedure as mandated in the Code of Criminal Procedure. 4. Mr. Jasbir Singh Jasrotia the learned counsel appearing on behalf of the respondent has submitted that there is nothing wrong in the impugned order passed by the court as the same has been passed after observing the procedure as mandated in the Code of Criminal Procedure. The police having failed to register the FIR in pursuance to the directions passed by the court on 27.06.2019 the only option left with the court was to direct the registration of FIR against the petitioners herein. The court was not barred from passing the directions as contained in the impugned order. 5. The learned senior counsel for the petitioners in rebuttal has submitted that the police had power to close the proceedings at the very initial stage as the police did not find the allegations of the respondent herein worth investigation. Moreover, the FIR No.248/2019 with regard to the occurrence stood already registered with the police Station, Domana. 6. Before proceedings further in the matter it is profitable to mention the facts which are necessary for disposal of the present petition. It appears that for an alleged occurrence which took place on 11.06.2019, the petitioners herein filed F.I.R No.248/2019 for offences under Sections 442, 147, 323, 354-B and 382 RPC. It is also revealed that the application was filed by Prakasho Devi before the concerned police station on 12.6.2019 for the occurrence of 11.6.2019 and the investigation was handed over to SI Talib Hussain who also recorded the statements of the witnesses during the proceedings and submitted the report before the concerned police station. It appears that the police did not find substance in that complaint and closed the same. This fact is revealed from the report submitted by police station, Domana in pursuance to the directions passed by the court of learned Forest court on 24.6.2019 in the complaint filed by the respondent herein before the said court. The photocopy of the application filed by the respondent-Parkasho Devi and addressed to SHO Police Station, Domana Jammu is on record as Annexure-A to the present petition. The respondent herein also preferred another complaint against the petitioners herein and on the said complaint the order came to be passed by the learned Forest Magistrate, Jammu wherein vide order dated 27.06.2019 and the in-charge Police Station, Domana, Jammu was directed to take necessary action under law. The respondent herein also preferred another complaint against the petitioners herein and on the said complaint the order came to be passed by the learned Forest Magistrate, Jammu wherein vide order dated 27.06.2019 and the in-charge Police Station, Domana, Jammu was directed to take necessary action under law. In pursuance to the said directions report came to be filed before the said court by Police Station, Domana on 12.07.2019. The report filed by the police Station led to the filing of protest petition by the respondent herein namely Parkasho Devi. The learned court after perusing the protest petition and the report filed by the police passed the order which is impugned in the present petition. The court through impugned order dated 24.12.2019 directed the SSP to investigate the matter as per law as enshrined under Section 156(3) Cr.P.C. after registering the FIR. 7. It is not in dispute that both the complaints of the respondent herein refer to the same occurrence. 8. In the opinion of this court the question which initially arises for consideration is if the police have investigated the complaint filed by Parkasho Devi with police station, Domana on 12.06.2019 the subsequent complaint filed by the said complainant on 27.06.2019 before the court of law is competent. 9. As mentioned above, the respondent herein had filed the complaint before the police station Domana with regard to the occurrence of 11.06.2019. The said complaint was taken care of by the police authorities and conclusion with regard to the same was also drawn. The outcome of the said complaint favoured the complainant or not or the investigation was properly conducted one or not is a different matter. What is important is that once the police in a way took cognizance of the complaint of Parkasho Devi there was no occasion for the complainant to file another complaint before the court. In case the complainant was not satisfied with the outcome of the proceedings which took place in the earlier complaint filed before the Police Station Domana she was always at liberty to avail the remedy which could be available to her in those proceedings. It is not that the police did not act on the first complaint and ignored the same altogether. It is not that the police did not act on the first complaint and ignored the same altogether. Had it been so than in that case the complainant could knock the doors of the court undoubtedly as the complainant could not be deprived of her right to agitate her grievance. The second complaint pending before the court of Forest Magistrate, subject matter of the present petition, does not lie in the present facts and circumstances of the case and proceedings which took place in the said complaint are not tenable in law. No leverage can be given to the party to proceed in any given case in the manner he likes. 10. It may also be noted that the learned magistrate in the complaint filed before him has commented upon the investigation which took place in the application filed by the respondent herein before the police station and passed the order, impugned in the present petition, keeping in view the same also. The said court could not do it as the proceedings in the present complaint were independent one. 11. The judgments have been referred in the case with regard to the manner in which the magistrate is to proceed where the complaint is filed for taking action under section 156 (3) of code of criminal procedure. In the case in hand the situation is not the same and the court has dealt the matter keeping in view the two complaints filed by the respondent herein. 12. The learned senior counsel for the petitioner has also argued that the complaint filed before the learned court of Forest Magistrate was not otherwise competent one in terms of judgment passed by apex court in Priyanka Srivastava case (cr. appeal 781/2012 decided on 19.3.2015) as the complainant Prakasho Devi had not fulfilled all the formalities which were required to be observed before filing the same in a competent court of jurisdiction. Indeed, the other side has submitted that the second complaint came to be filed only for the reason that the first complaint filed by the complainant Prakasho Devi was not taken care of by the police authorities and that complainant had complied with the requirements as envisaged in the said authority of Supreme Court. 13. Indeed, the other side has submitted that the second complaint came to be filed only for the reason that the first complaint filed by the complainant Prakasho Devi was not taken care of by the police authorities and that complainant had complied with the requirements as envisaged in the said authority of Supreme Court. 13. In view of what has been held above by the court the argument raised by the learned counsel for the petitioner qua the maintainability of the second complaint on the aforesaid ground need not be gone into by this court. 14. In view of the discussion made above, it is held that the complaint out of which the present petition has arisen does not lie and thus the proceedings held in the complaint filed before the court of learned Forest Magistrate, Jammu stand quashed. However, it is made clear that the order does not preclude the respondent Parkasho Devi from exercising the remedy which she may have against the proceedings which are taken out in the first complaint filed by her before the police station, Domana. It is further made clear that this order does not in any manner reflect upon the veracity of allegations made in that complaint.