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2021 DIGILAW 839 (ALL)

Riyajuddin v. State of U. P.

2021-08-09

MANOJ KUMAR GUPTA, MOHD.ASLAM

body2021
JUDGMENT : 1. Heard Sri. J.P. Pandey, learned counsel for the petitioners, learned A.G.A. for the State-respondents and Sri. Rahul Singh Dahiya, learned counsel for respondent no. 4. 2. By means of instant writ petition, the petitioners have prayed for quashing of F.I.R. dated 15.3.2021, under Sections 376-D, 307 and 506 I.P.C. Police Station-Kotwali Dehat, District Bulandshahar, registered as Case Crime No. 0199 of 2021 and for a mandamus restraining the State-respondents from arresting the petitioners. 3. The allegations in the impugned F.I.R. lodged by respondent no. 4 are that on 31.7.2019 at about 3:00 p.m. she had gone to Family Court, Bulandshahar to withdraw cheque of Rs. 20,000/- granted to her towards maintenance. At that time, her husband Riyajuddin accompanied by Moinuddin and Asgar Ali also came there and took her and her mother and brother, who were present there, to Bhood crossing in their car on the pretext that they will settle the disputes amicably. On reaching there, they asked the mother of the complainant and her brother to get down from the car and thereafter they took respondent no. 4 to a lonely place in Transport Nagar, Bulandshahar, where all the three accused raped her and also prepared a video film on their mobile. When she raised alarm, the accused petitioners tried to strangulate her by putting her dupatta on her neck. The accused left the place threatening respondent no. 4 of dire consequences if she does not withdraw all cases. They also threatened to make the video film viral. The complainant went to the police station accompanied by her mother and brother to get a F.I.R. registered, but the police did not register the F.I.R. She had been making continuous efforts in that regard. On the other hand, the accused petitioners had been extending threats to her and compelling her for a settlement. She again gave a written complaint at the police station and on basis of which the police has now registered a F.I.R. against the petitioners. 4. The sole submission of learned counsel for the petitioners is that on exactly similar facts, respondent no. 4 filed an application under Section 156(3) Cr.P.C. before the concerned Magistrate whereupon the police was asked to submit report. The police reported that no such incident took place. 4. The sole submission of learned counsel for the petitioners is that on exactly similar facts, respondent no. 4 filed an application under Section 156(3) Cr.P.C. before the concerned Magistrate whereupon the police was asked to submit report. The police reported that no such incident took place. Thereafter, learned Magistrate had treated the application under Section 156(3) Cr.P.C. as a complaint and took cognizance of the offence by issuing notices to the petitioners. The petitioners have challenged the summoning order passed in complaint case in revision, which is stated to be pending. It is urged that in the aforesaid background, the lodging of impugned F.I.R. with considerable delay, on same facts, amounts to abuse of the process of law. In support of the said contention learned counsel for the petitioners has placed reliance on the judgment of Apex Court in Kapil Agarwal vs. Sanjay Sharma decided on 1.3.2021 (Criminal Appeal No. 142 of 2021). 5. On the other hand, learned A.G.A. submitted that there is no legal bar in registering the impugned F.I.R. He further submitted that the allegations against the petitioners are of serious nature and this Court should not interfere in exercise of discretionary power under Article 226 of the Constitution of India. 6. Before we came to the facts of the instant case, it would be advantageous to take note of the judgment of the Supreme Court in Kapil Agarwal (supra) in some detail. In that case, one M/s Varun Beverages Ltd. (for short ‘VBL’) was a licensed franchisee of PepsiCo India Pvt. Ltd. In the year 2013, it appointed the firm of the complainant-Sanjay Sharma as a distributor of its products for Loni, District Ghaziabad. In the year 2014, the distributorship contract was terminated on account of non payment of dues of VBL. It was alleged that a cheque towards the same was issued by the complainant in favour of VBL. When it was presented for encashment, it was dishonored due to insufficient funds. After issuing statutory notice under Section 138 of Negotiable Instruments Act, Complaint Case No. 7652 of 2014 was filed against Sanjay Sharma, which was pending. Sanjay Sharma, thereafter filed a complaint against one of the officers of the VBL being F.I.R. No. 1565 of 2014 dated 15.9.2014 alleging misappropriation of Rs. 6 lacs. After investigation, a negative final report was submitted by the police. Sanjay Sharma, thereafter filed a complaint against one of the officers of the VBL being F.I.R. No. 1565 of 2014 dated 15.9.2014 alleging misappropriation of Rs. 6 lacs. After investigation, a negative final report was submitted by the police. Thereafter Sanjay Sharma filed another complaint against the officers of VBL, alleging misappropriation of another sum. He then filed an application under Section 156(3) Cr.P.C. The learned Magistrate instead of directing the police to register F.I.R. decided to inquire into the matter treating the same as a complaint. Aggrieved thereby, Sanjay Sharma filed criminal revision, which was allowed and the matter was remitted back to the learned Magistrate for passing a fresh order on application under Section 156(3) Cr.P.C. These proceedings were pending before the learned Magistrate. After approximately two years, Sanjay Sharma lodged another F.I.R. against the officers of VBL (appellants before the Supreme Court) for having committed offences under Sections 406/420 I.P.C. with similar allegations as were contained in application under Section 156(3) Cr.P.C. The F.I.R. was challenged before this Court in a writ petition, but this Court refused to quash the F.I.R. and aggrieved thereby the accused approached the Supreme Court. The main contention before the Supreme Court was that the dispute between the parties was of purely civil nature, but the process of law had been abused by converting the said dispute into a criminal one. It was also the contention of the appellants that in the first information report there is no mention of proceedings pending before the learned Magistrate under Section 156(3) Cr.P.C. Another legal submission was to the effect that once application under Section 156(3) Cr.P.C. was pending, no F.I.R. could be registered. 7. It was also the contention of the appellants that in the first information report there is no mention of proceedings pending before the learned Magistrate under Section 156(3) Cr.P.C. Another legal submission was to the effect that once application under Section 156(3) Cr.P.C. was pending, no F.I.R. could be registered. 7. The Supreme Court while considering the plea whether pendency of complaint or application under Section 156(3) Cr.P.C. was an impediment in lodging the F.I.R. took into consideration Section 210 Cr.P.C. and held as follows:- “Thus, as per Section 210 Cr.P.C. when in a case instituted otherwise than on a police report, i.e. in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.” 8. At the same time, the Supreme Court held that if lodging of subsequent F.I.R. is found to be an abuse of process of law, it can be quashed in exercise of powers under Article 226 of the Constitution and under Section 482 Cr.P.C. The Supreme Court examined the facts of that case and found the F.I.R. in that case was abuse of the process of law. Undoubtedly, one of the factor that weighed was that there was no mention of the pending proceedings before learned Magistrate in the first information report. But that was not the sole consideration for arriving at the conclusion that the proceedings were abuse of the process of law. 9. The Supreme Court is clear on the point that there is no legal bar in registering F.I.R. even if complaint case is pending on same set of facts. Only the procedure prescribed under Section 210 Cr.P.C. has to be followed in that event. Therefore, we do not find any force in the contention of learned counsel for the petitioners and that since the matter is pending before learned Magistrate by way of a complaint case, therefore, first information report could not have been lodged. 10. Now coming to the facts of the instant case, we find that the allegations are of a very serious nature. The complainant has alleged that the petitioners had committed gang rape and had also prepared a video and are threatening to make it viral unless she withdraws all criminal cases and agrees for settlement. She also claims that the offence was committed at a lonely place in Transport Nagar where she was forcibly taken. These aspects require proper investigation by the police and the mere fact that the fourth respondent had not mentioned about the complaint case pending before the Magistrate is not sufficient to quash the F.I.R. The procedure prescribed under Section 210 Cr.P.C. undoubted, has to be followed and it amply protects the interest of the petitioners. 11. Accordingly, the petition lacks merit and is dismissed.