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2022 DIGILAW 1376 (GUJ)

BISU DEVAYAT VARU v. STATE OF GUJARAT

2022-10-13

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Heard learned advocate Mr. Rathin P. Raval for the applicant and learned APP Ms. Maithili Mehta for the respondent-State. Though served, none has appeared on behalf of respondent No. 2. 2. By way of the present application, the applicant herein has prayed for quashing of the complaint being Criminal Inquiry No. 03/2012, which is pending before the learned Judicial Magistrate First Class, Vadiya, District-Amreli. 3. Learned advocate Mr. Rathin P. Raval submitted that the respondent No. 2 filed a complaint being M. Case No. 01/2010 on 03.12.2010, wherein, the applicant herein is arraigned as accused No. 1 for the charges under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code. 4. Learned advocate Mr. Raval has further submitted that the said FIR being M. Case No. 01/2010 dated 03.12.2010 is pending investigation before the competent authority and that the respondent No. 2 filed a Criminal Inquiry No. 03/2012 in June-2012 before the Court of learned Judicial Magistrate First Class, Vadiya, for the same offences as alleged in the FIR being M. Case No. 01/2010 dated 03.12.2010. 5. Without going into the merits of the matter, the allegations levelled in the FIR being M. Case No. 01/2010 dated 03.12.2010 and as stated in paragraph Nos. 3 and 4 of the said complaint can be said to be identical to the allegations levelled by the respondent No. 2 in the Criminal Inquiry No. 03/2012. By virtue of which, process came to be issued by the learned Magistrate vide order dated 07.03.2014, wherein, the process was issued qua Section 471 of the Indian Penal Code against the applicant herein. 6. Being aggrieved by the order of issuance of process dated 07.03.2014, the applicant herein approached this Court by filing the present application. Rule came to be issued vide order dated 11.10.2017, the said order reads thus: “Heard learned advocate Mr. Raval for the applicant and perused the FIR which is registered as C.R. No. I-1 of 2010 with Amreli Police Station and subsequent thereto private complaint filed in the Court of learned Judicial Magistrate of Vadiya being Criminal Inquiry No. 3 of 2012. Rule returnable on 13.12.2017. Learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No. 1-State. Ad-interim relief in terms of paragraph 16(C) till then qua applicant. Rule returnable on 13.12.2017. Learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No. 1-State. Ad-interim relief in terms of paragraph 16(C) till then qua applicant. Direct service to respondent No. 2 through concerned Police Station is permitted. Respondent No. 2 to be served on or before 17.11.2017 and affidavit of service has to be filed by the petitioner on or before 17.11.2017, failing which ad-interim relief granted shall automatically stand vacated.” 7. Considering the submissions advanced by the learned advocate for the applicant and on perusal of both the complaints i.e. the first complaint being M. Case No. 01/2010 and the complaint which is impugned being Criminal Inquiry No. 03/2012, clearly the provisions arraigned in both the complaints are the same and the second complaint is filed for the same allegations as alleged in the first complaint being M. Case No. 01/2010 dated 03.12.2010. 8. Learned APP Ms. Maithili Mehta submitted that the order impugned by which process came to be issued may be modified. In view of this Court, the order impugned is not an order which can be modified and more particularly, in view of the fact that the process which has been issued qua Section 471 against the applicant herein is subject matter of the FIR being M. Case No. 01/2010 dated 03.12.2010 and the said FIR is pending investigation. 9. It is apposite to refer to the position of law laid down by the Hon’ble Apex Court in case of Poonam Chand Jain and Another vs. Fazru, AIR 2010 SC 659 , wherein the Hon’ble Apex Court held thus: “23. Almost similar questions came up for consideration before this Court in the case of Pramatha Nath Talukdar and Another vs. Saroi Ranjan Sarkar, MANU/SC/0149/1961 : AIR 1962 SC 876 . The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short 'the Code') is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short 'the Code') is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as (a) where the previous order was passed on incomplete record (b) or on a misunderstanding of the nature of the complaint (c) or the order which was passed was manifestly absurd, unjust or foolish or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings. This Court made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In paragraph 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court such a course is not permitted on a correct view of the law. 24. This question again came up for consideration before this Court in Jatinder Singh and Others vs. Ranjit Kaur, MANU/SC/0753/2001 : AIR 2001 SC 784 . There also this Court by relying on the principle in Pramatha Nath (supra) held that there is no provision in the Code or in any other statute which debars complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are exceptional circumstances'. This Court held in Para 12 if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in the filing a second complaint on the same facts. This Court held in Para 12 if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in the filing a second complaint on the same facts. However if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different. Saying so, the learned Judges held that the controversy has been settled by this Court in Pramatha Nath (supra) and quoted the observation of Justice Kapur in paragraph 48 of Pramatha Nath (supra): .......An order of dismissal under Section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into..... 25. Again in Mahesh Chand vs. B. Janardhan Reddy and Another, (2003) 1 SCC 734 , a three Judge Bench of this Court considered this question in paragraph 19 at page 740 of the report. The learned Judges of this Court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand (supra) this Court relied on the ratio in Pramatha Nath (supra) and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath (supra) were reiterated. 26. Therefore, this Court holds that the ratio in Pramatha Nath (supra) is still holding the field. 26. Therefore, this Court holds that the ratio in Pramatha Nath (supra) is still holding the field. The same principle has been reiterated once again by this Court in Hiralal and Others vs. State of U.P. and Others, MANU/SC/0546/2009 : AIR 2009 SC 2380 . In paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand (supra) discussed hereinabove. 27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the knowledge of the first complainant. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained.” 10. In case of Parmar Saburbhai Ganpatbhai Bhalabhai vs. State of Gujarat and Others, MANU/GJ/1700/2016, this Court in Para Nos. 6 and 8 has observed thus: “6. Having considered the facts of the case, submissions made by the learned advocates for the respective parties and documents produced on record, it appears that initially Solanki (Vankar) Jayantibhai Dahyabhai of Bahuchraji, District Mehsana, lodged the complaint before the complaint before the Bahuchraji Police Station of Mehsana District under Sections 363, 366 of the Indian Penal Code on 24.01.2011. The offence was committed as per the complaint produced at Annexure ‘A’ on 17.1.2011 at 18:00 hours. Name of the accused as per the complaint was Parmar Dillip Umedbhal, resident of Shankhalpur, taluka Bahuchraji, District Mehsana. As per the submissions made in this complaint her daughter had gone to attend her school namely ‘Nutan High School’ on 17.1.2011 at about 10:30 morning as she was studying in standard 10th. Name of the accused as per the complaint was Parmar Dillip Umedbhal, resident of Shankhalpur, taluka Bahuchraji, District Mehsana. As per the submissions made in this complaint her daughter had gone to attend her school namely ‘Nutan High School’ on 17.1.2011 at about 10:30 morning as she was studying in standard 10th. But, she did not return back at 17:00 p.m. Hence, Madhuben Inquired the co-students of the school in respect of her daughter namely Ekta as well as from the relatives also. But, there was no favourable news of her daughter. Therefore, a declaration was given before the Bahuchraji Police Station on 18.01.2011, in respect of the missing of the daughter. Thereafter, on an Inquiry it was found from the elder brother of the complainant Jayantibhai Dahyabhai Solanki that, on 17.1.2011 at about 18:00 p.m. one Dilip Umedbhal Parmar resident of Shankhalpur had kidnapped the daughter of the complainant namely Ekta. Therefore, the complainant inquired of this Dilip Umedbhai Parmar at his residence at village Chavell, Taluka: Chanasma, but he was not found at the residence. Hence, this complaint was lodged by the father of the daughter against this Dilip Umedbhai Parmar under Sections 363 and 366 of the Indlan Penal Code. There is nothing on record that what investigation was made by the Investigating Agency after lodging the complaint. But, It transpires from the order passed by the learned JMFC, Bahuchraji, in connection with another complaint before his Court lodged by the Complainant Solanki (Vankar) Madhuben Jayantibhai resident of Shankhalpur against the four accused namely Parmar Dilip Umedbhal, original accused in the previous complaint lodged by father of the victim daughter, No. 2-Parmar Saburbhai Ganpatbhal present applicant, No. 3-Parmar Laxmiben Hemabhai and No. 4 Parmar Rakeshbhai Hemabhal for the offences punishable under Sections 363, 366, 376, 212, 506(2) and 114 of the Indian Penal Code. That, this complaint was lodged on 15.03.2012, after passing of 1 year and 2 months of the previous complaint at Annexure ‘A’ by her husband. Allegations against the present applicant in the second complaint produced at Annexure ‘B’ were made that the complainant wife went at the house of the present applicant for search of her daughter Ekta, then it was threatened by the present applicant informing her that her daughter had come at her house and stayed for night and went at Ahmedabad. Allegations against the present applicant in the second complaint produced at Annexure ‘B’ were made that the complainant wife went at the house of the present applicant for search of her daughter Ekta, then it was threatened by the present applicant informing her that her daughter had come at her house and stayed for night and went at Ahmedabad. In the second complaint, In paragraph 2 it is stated that the accused No. 1 was not arrested by the Bahuchraji Police in connection with the previous complaint, but, yesterday at about 4:00 p.m. she came to know that her daughter and the accused No. 1 Dilip Umedbhai Parmar came to the house of the present applicant and stayed for a night. Therefore, she herself accompanied with her husband and Solanki Naginbhai Nagarbhal went to the house of the present applicant and inquired. Hence, the present applicant annoyed by the complainant, abused her saying that her daughter had come to his house and stayed for a night. At present, she was available at the residence of Laxmiben Hemabhai and Rakeshbhai Hemabhal under their custody at Ahmedabad. They can brought their daughter, while the complainant had visited his house. In this connection, if his name could be disclosed or any family members would be involved complainant would be murdered, hence, this complaint was lodged. Initially, after getting verification of the complainant, learned judge was pleased to direct the investigating officer of Bahucharaji Police Station to inquire and submit the status report of the previous complaint, which was registered with the Bahucharaji Police Station vide C.R. No. 8/2011, within 15 days. Thereafter, it appears that another order was passed by the learned JMFC, Bahucharaji, on 06.05.2013 considering the police record in connection with the C.R. No. 1-8/2011. As per the order passed by the learned JMFC, the accused Parmar Dilip Umedbhai was not traceable and hence with a liberty for further investigation a summary was sought by the police. In the report it was not found that any conspiracy was made by the present applicant or other accused in giving shelter to the accused under Section 212 of the Indian Penal Code. But as allegations were made by the complainant under Section 376 of Indian Penal Code, the victim girl was not found, no further investigation was possible as reported. But as allegations were made by the complainant under Section 376 of Indian Penal Code, the victim girl was not found, no further investigation was possible as reported. Learned Judge was pleased to order to make an Inquiry under Section 202(2) of Cr.P.C. Again, the learned Judge passed the detailed order on 17.10.2013, to issue arrest warrant against all the four accused for the offences punishable under Sections 363, 366, 366-A, 504, 506(2), 212 and 114 of Indian Penal Code. In the previous complaint lodged by the father of the victim girl, name of the present applicant was not disclosed at initial stage nor he was involved alleging knowing, participating in the alleged offence in any manner by this applicant. After passing of 1 year and 2 months approximately from the filing of previous complaint by the father, the mother preferred second complaint, only allegations against the present the father, the mother preferred second complaint on 15.03.2012 involving the present applicant and other two co-accused, as if, they had kidnapped her daughter namely Ekta on 17.1.2011. In the second complaint, only allegations against the present applicant are made that the daughter of the complainant and the accused stayed at the house of the present applicant at night and while making an inquiry by the complainant she was threatened and informed that her daughter had come to his house and stayed at night and went to Ahmedabad. She should not come back, otherwise, she would be murdered. If such a threat was given by the present applicant, certainly, complaint can be lodged and would be maintainable for giving shelter to the accused and daughter of the complainant or for threatening and killing her daughter in future. But so far as kidnapping of her daughter on 17.1.2011 is concerned, participation of the present applicant is ruled out. The complainant has tried to drag the present applicant unnecessarily by lodging the second complaint before the learned JMFC at Bahuchraji. While no allegations were made by her husband in previous complaint before the Bahuchraji Police Station registered vide C.R. No. 1-8/2011 dated 24.1.2011. Police has certainly opened its road for further investigation while seeking “A” summary before the learned JMFC, Bahuchraji, as the accused was not traced out as per the report. Police has never closed this chapter. While no allegations were made by her husband in previous complaint before the Bahuchraji Police Station registered vide C.R. No. 1-8/2011 dated 24.1.2011. Police has certainly opened its road for further investigation while seeking “A” summary before the learned JMFC, Bahuchraji, as the accused was not traced out as per the report. Police has never closed this chapter. Road for further investigation in respect of the complaint registered with Bahuchraji Police Station vide C.R. No. 1-8/2011 is available as and when required. But, prima facie, present applicant is not involved in an offence under Section 363, 366 of Indian Penal Code, kidnapping the daughter of the complainant. Two complaints on same cause of action and for one incident would not be maintainable in the eyes of law. 8. This Court is justified after applying the test laid down in the section itself for exercising role and substantial justice for the administration of which this Court exist by quashing the criminal complaint i.e. Criminal Case No. 467/2013 (Police Inquiry No. 3/12) pending before the learned JMFC, Bahuchraji Court qua the present applicant. Hence, the following order: Present application is hereby allowed. Criminal Case No. 467/2013 (Police Inquiry No. 3/12) pending before the learned JMFC, Bahuchraji, for the offences punishable under Sections 363, 366, 376, 212, 506(2) and 114 of the IPC is hereby quashed and set aside, qua the present applicant. Rule is made absolute, accordingly. The Investigating Officer is at liberty to investigate the offence registered vide C.R. No. I-8/2011 dated 24.01.2011, registered before the Bahuchraji Sub Division, Visnagar Taluka, District Mehsana under sections 363 and 366 of Indian Penal Code.” 11. In case of Hiteshbhai Maganbhai Khagad vs. State of Gujarat passed in Cr. M.A. No. 11125 of 2009, this Court in Para Nos. 5 and 9 has observed thus: “5. The learned advocate thereafter relies upon the judgment of the Hon’ble Apex Court in case of Poonam Chand Jain and Another vs. Fazru, AIR 2010 SC 659 , wherein the Apex Court has held that the second complaint on the same facts should be entertained only in exceptional circumstances. 9. Having heard the learned advocates and having perused the records of the case, it is apparent that the written complaint, which was given on 18.01.2009 and the impugned FIR are containing the allegations, which are verbatim. 9. Having heard the learned advocates and having perused the records of the case, it is apparent that the written complaint, which was given on 18.01.2009 and the impugned FIR are containing the allegations, which are verbatim. The accused named in the written complaint and the impugned FIR are also the same. The report submitted by the Police Inspector, Rajula to the superior officer contains the details of inquiry, which includes the statements of the respondent No. 2, her son Balwant and the statements of the Sarpanch of the village and all of these statements are on the line that the offence has not taken place and it is out of some misunderstanding the written complaint was given. Moreover, when the issue came to be closed by submitting of reports by the Police Inspector, Rajula and steps under Section 107 of Cr.P.C. the filing of the impugned FIR is an abuse of process of law.” 12. In view of the position of law as stated above and in view of the fact that the FIR being M. Case No. 01/2010 dated 03.12.2010 is pending for investigation and when the second complaint being Criminal Inquiry No. 03/2012 is on the same issue, therefore, it is not maintainable in the eyes of law. 13. Therefore, without entering into the merits of the case, the Criminal Inquiry No. 03/2012 is hereby quashed and set aside. Consequently, the process issued vide order dated 07.03.2014 passed by learned Judicial Magistrate First Class, Vadiya, is hereby quashed and set aside. 14. Accordingly, the present application stands disposed of. Rule is made absolute to the aforesaid extent. 15. It is clarified that the investigation may continue qua the first complaint being M. Case No. 01/2010.