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2023 DIGILAW 433 (UTT)

Diwan Singh v. State of Uttarakhand

2023-07-31

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. There are a bundle of intermingled facts which are attempted to be argued and considered in this C482 Application, where the challenge has been given by the present applicants to the Criminal Case No. 545 of 2018, State vs. Diwan Singh and Others, being the proceedings drawn before the Court of Chief Judicial Magistrate, Ramnagar, District Nainital, whereby the applicants, by an order dated 03.08.2018 have been summoned to be tried for the offence under Section 420 of IPC. Apart from the fact that, as it has been argued by the learned counsel for the applicants that it is exclusively a civil dispute for the reason being that the applicants have been recorded in shreni 1 (ka) in the revenue records by virtue of a right of succession which is falling upon them upon the death of their predecessor owner. But, subsequent to it, the sale deed was executed on 31.10.2015 and the factum of execution of the sale deed and the right of succession having been dwelled upon present applicants stand recorded in the khatauni pertaining to 1421 to 1426 fasli in relation to the land lying in khata No. 154. 2. It is after the execution of the sale deed that certain disputes arose pertaining to the land being vested with PW-2, consequent to which the present respondent contends that they have filed a complaint before the competent authority on 16.05.2016 and then to the Senior Superintendent of Police on 27.05.2016. But, when the same was not considered they filed a complaint and that was dismissed by an order dated 10.07.2017. 3. Subsequent to it, the respondent had preferred a revision and it is an admitted case of the respondent that the revision got dismissed as withdrawn on 27.02.2018, because of the fact that prior to it on 21.02.2018, he had registered an FIR, being FIR No. 38 of 2018. 4. 3. Subsequent to it, the respondent had preferred a revision and it is an admitted case of the respondent that the revision got dismissed as withdrawn on 27.02.2018, because of the fact that prior to it on 21.02.2018, he had registered an FIR, being FIR No. 38 of 2018. 4. It has been argued by the learned counsel for the applicants that upon rejection of the complaint dated 10.07.2017, subsequent registration of the FIR would be bad, because that itself would be an abuse of process, in the light of the judgment of the Hon’ble Apex Court as reported in Kapil Agarwal and Others vs. Sanjay Sharma and Others, 2021 (5) SCC 524 whereby the Hon’ble Apex Court in Para 21 of the said judgment which has observed that where a complaint proceedings have already been decided, the registration of the subsequent proceedings by way of a State case is a counterblast to the proceedings and the same itself would be an abuse of process. The relevant Para of the aforesaid judgment is extracted hereunder: “21. We are not expressing anything on merits whether, any case is made out against the appellants for the offences alleged in 156(3) Cr.P.C. application as the same is pending before the learned Magistrate and the learned Magistrate is to take call on the same. Therefore, when the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are of the opinion that the High Court ought to have exercised the powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure the ends of justice.” 5. Therefore, when the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are of the opinion that the High Court ought to have exercised the powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure the ends of justice.” 5. To meet out the said argument, the learned counsel for the applicants submits that this case would be in exception to the judgment of the Hon’ble Apex Court as rendered in the matters of Kapil Agarwal (supra) for the reason being that he contends that prior to rejection of the complaint on 10.07.2017, he had already registered a complaint on 16.05.2016 and thereafter a complaint to the Senior Superintendent of Police on 27.05.2016, as such, rejection of the complaint on 10.07.2017 will not have any bearing for the reason being that apart from the fact that its genesis was from the earlier complaints coupled with the fact that the rejection of the complaint on 10.07.2017 was even prior to the issuance of notice to the present applicants, being a rejection under Section 203 of Cr.P.C. 6. What would be the effect of dismissal of a complaint whether it is on merit after notice or whether it is at the stage of the proceedings under Section 203 of Cr.P.C. is not material for the reason being that, for the same set of allegations, the applicants have preferred a complaint and rightly or wrongly the said complaint was rejected on 10.07.2017. Not even that, his Revision was later on was dismissed as withdrawn on 27.02.2018 and as a consequence thereto, the effect would be that the order of rejection of the complaint on the same set of allegations on 10.07.2017 would be treated to have attained finality qua the present respondent and thus initiation of the subsequent proceedings by registration of the FIR on 21.12.2018 would be bad in the eyes of law. 7. 7. In so far as the argument extended by the learned counsel for the respondent that since the complaint was not rejected after the issuance of notice, it will have no bearing so far as the registration of the subsequent FIR dated 21.02.2018 is concerned, the Hon’ble Apex Court in the aforesaid judgment of Kapil Agarwal (supra), has not drawn any distinction as such it has observed that irrespective of whatsoever the reason might have been to reject the complaint, if the said rejection of the complaint has attained finality, the subsequent registration of the FIR on the same facts would be an abuse of process and in this case, particularly, the facts in itself speak much aloud that when the complaint was rejected on 10.07.2017 and revision had been preferred by the present respondent against the rejection of the complaint during the intervening period when the revision was pending consideration, the applicant has registered the FIR on 21.02.2018 and it was later on that he got his Revision dismissed as withdrawn. 8. So far as the dismissal of the complaint dated 10.07.2017 due to non-compliance of the provisions contained under Section 203 of Cr.P.C. and subsequent withdrawal of the Revision on 27.02.2018, the same would be treated as to have attained finality as against the respondent. Maybe that the Revision was dismissed as withdrawn because of the fact that he has filed an FIR on 21.02.2018. 9. The Hon’ble Apex Court has observed in its very clear terms that if the rejection of the complaint, is an order which itself has attained finality, though there is no classification as such as to whether that rejection contemplates a rejection of a complaint on merits or not but even otherwise, this Court is of the view that once the complaint preferred by the respondent is rejected and that has attained finality with the dismissal of the Revision on 27.02.2018, it will be read as against the present respondent which will not enable him to file an FIR subsequent to the rejection of the complaint on 10.07.2017, having registered the FIR on 21.02.2018 at a much later stage. 10. 10. Thus, on this limited count itself that since the FIR dated 27.02.2018 has been registered after the rejection of the complaint dated 10.07.2017, may be for the ground of non-compliance of the provisions contained under Section 203 of Cr.P.C. but the material impact of the order dated 10.07.2017 would be that the complaint of the respondent stood rejected and further too he cannot take the benefit of registering the FIR on 21.02.2018 first and then seek withdrawal of the revision preferred by him against the rejection of the complaint dated 10.07.2017 by withdrawing it by an order dated 27.02.2018. 11. In order to summaries the issue, that once the complaint of the respondent has already been rejected if it may be for whatsoever reason, when he registered the FIR after rejection of the complaint on 21.02.2018, it is answered that the same would be barred by the principles laid down by the Hon’ble Apex Court in the judgment of Kapil Agarwal (supra), because the Hon’ble Apex Court has held that when the FIR was registered after the rejection of the complaint, that in itself would be an abuse of process. 12. The abuse of process itself is quite apparent in the instant case when the respondent, after filing of the Revision, has withdrawn the same after filing of an FIR dated 21.02.2018 that itself smacks malice on part of the respondent to have instituted a subsequent FIR under Section 420 of IPC and that too for the same set of allegations based, on the basis of a complaint which stood rejected on 10.07.2017. Hence, on this simpliciter ground and the ratio laid down by the judgment of the Hon’ble Apex Court, the registration of the Criminal Case No. 545 of 2018, State vs. Diwan Singh and Others, before the Court of Additional Chief Judicial Magistrate, Ramnagar, District Nainital, whereby the present applicants have been summoned to be tried for the offence under Section 420 of IPC would be an abuse of process because of the earlier rejection of the complaint of the respondent on 10.07.2017. Thus the proceedings itself since being vitiated and being an abuse of process in the light of the judgment of the Hon’ble Apex Court in the matters of Kapil Agarwal (supra), the instant C482 Application would stand allowed and as a consequence thereto the proceedings of Criminal Case No. 545 of 2018, State vs. Diwan Singh and Others pending consideration before the Court of Additional Chief Judicial Magistrate, Ramnagar, District Nainital, would hereby stand quashed.