Sec.482 of Cr.P.C.- No two complaints on same set of facts maintainable - when first complaint was referred as mistake of fact - another complaint by spouse on the same set of facts not maintainable is abuse of process - their lordships held that In the present case, the registration of Crime No.38 of 2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of 2010 as mistake of fact, would certainly amount to abuse of process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of facts. Viewed from factual or legal aspects, it is a fit case to quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking the inherent jurisdiction under Section 482 Cr.P.C not only to prevent abuse of process of law but also to secure the ends of
justice. In the result, the Criminal Petition is allowed and the proceedings in Cr.No.38 of 2011 of Gara Police Station, Srikakulam District against petitioners/A.1 to A.6 are hereby quashed.=
The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased
died on 20.05.2005 while working as seaman in Wilco Ship
Management & Travels Private Limited, Mumbai. The employer
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased. For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased. Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the
Commissioner for Workmens Compensation Act-cum-Labour
Court at Mumbai. The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same
was allowed on 10.08.2006 awarding compensation of
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report. After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant. In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai. Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.=
In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts. Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed. As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11692
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.3712 OF 2011
23-07-2014
Bondi Janaki and Others...PETITIONERS
1.State of A.P., rep. by its Public Prosecutor
2.Bondi Korlayya...RESPONDENTS
Counsel for Petitioners : Sri B.M. Patro
Counsel for Respondent No.1: Additional Public Prosecutor
Counsel for Respondent No.2: Sri Kuriti Bhaskara Rao
<GIST:
>HEAD NOTE:
? Cases referred
(2010) 12 SCC 254
2 (2001) 6 SCC 181
3 (2013) 5 SCC 148
4 (2013) 2 SCC 435
5 (2010) 8 SCC 775
6 (2013) 7 SCC 45
7 (2012) 1 SCC 130
8 (2010) 8 SCC 775
9 (1982) 1 SCC 466
10 AIR 1992 SC 604
11 (2000) 2 SCC 636
12 (2008) 12 SCC 531
13 AIR 1960 SC 866
14 AIR 1982 SC 604
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.3712 OF 2011
ORDER:
This petition is filed under Section 482 Cr.P.C. to quash
the proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District.
The factual matrix, leading to the filing of the present
petition, are as follows:
First petitioner is the wife, 2nd respondent is the father and
the de-facto complainant in Cr.No.82 of 2010 of P.S. Gara is the
mother of one Bondi Bhujanga Rao (hereinafter referred to as
the deceased). The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased
died on 20.05.2005 while working as seaman in Wilco Ship
Management & Travels Private Limited, Mumbai. The employer
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased. For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased. Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the
Commissioner for Workmens Compensation Act-cum-Labour
Court at Mumbai. The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same
was allowed on 10.08.2006 awarding compensation of
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report. After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant. In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai. Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.
Heard the learned counsel for the petitioners, the learned
counsel for the 2nd respondent and the learned Additional Public
Prosecutor appearing for the State.
The learned counsel for the petitioners submitted that it is
a fit case to quash the proceedings in view of the principles viz.,
1) registration of second FIR in respect of an act or omission on
the part of an individual or individuals, which constitute the
alleged offence, is not legally sustainable; and 2) there is
abnormal delay in lodging the complaint. To substantiate the
submissions, the learned counsel has relied upon the following
decisions:
I. Babubhai v State of Gujarat
21. In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness is
to be applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same transaction. If the
answer is affirmative, the second FIR is liable to be quashed. However,
in case, the contrary is proved, where the version in the second FIR is
different and they are in respect of the two different incidents/crimes,
the second FIR is permissible. In case in respect of the same incident
the accused in the first FIR comes forward with a different version or
counter claim, investigation on both the FIRs has to be conducted.
II. T.T.Antony v State of Kerala
27. A just balance between the fundamental rights of the citizens
under Articles 19 and 21 of the Constitution and the expansive
power of the police to investigate a cognizable offence has to be
struck by the court. There cannot be any controversy that sub-
section (8) of Section 173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and documentary)
and forward a further report or reports to the Magistrate. In Ram Lal
Narang Vs. State (Delhi Admn.) {(1979) 2 SCC 322} it was, however,
observed that it would be appropriate to conduct further
investigation with the permission of the court. However, the sweeping
power of investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the same
incident, giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing the final
report under Section 173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a case of abuse of the
statutory power of investigation in a given case. In our view a case of
fresh investigation based on the second or successive FIRs, not being
a counter case, filed in connection with the same or connected
cognizable offence alleged to have been committed in the course of
the same transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 Cr.P.C. or under Article
226/227 of the Constitution.
III. Surender Kaushik v State of Uttar Pradesh
24. From the aforesaid decisions, it is quite luminous that the
lodgment of two FIRs is not permissible in respect of one and the
same incident. The concept of sameness has been given a restricted
meaning. It does not encompass filing of a counter FIR relating to the
same or connected cognizable offence. What is prohibited is any
further complaint by the same complainant and Ors. against the same
accused subsequent to the registration of the case under the Code, for
an investigation in that regard would have already commenced and
allowing registration of further complaint would amount to an
improvement of the facts mentioned in the original complaint. As is
further made clear by the three-Judge Bench in Upkar Singh v Ved
Prakash, (2004) 13 SCC 292, the prohibition does not cover the
allegations made by the accused in the first FIR alleging a different
version of the same incident. Thus, rival versions in respect of the
same incident do take different shapes and in that event, lodgment of
two FIRs is permissible.
IV. Udai Shankar Awasthi v State of U.P. ,
47. The instant appeals are squarely covered by the observations
made in Kishan Singh (dead) thr. L.Rs. v Gurpal Singh and Ors. ,
(Supra) and thus, the proceedings must be labeled as nothing more
than an abuse of the process of the court, particularly in view of the
fact that, with respect to enact the same subject matter, various
complaint cases had already been filed by Respondent No. 2 and his
brother, which were all dismissed on merits, after the examination of
witnesses. In such a fact-situation, Complaint Case No. 628 of 2011,
filed on 31.5.2001 was not maintainable. Thus, the Magistrate
concerned committed a grave error by entertaining the said case, and
wrongly took cognizance and issued summons to the Appellants.
V. Harivadan Babubhai Patel v State of Gujarat
12. In this context, we may refer with profit to the authority in State
of H.P. v. Gian Chand, (2001) 6 SCC 71, wherein a three-Judge
Bench has opined that the delay in lodging the FIR cannot be used as
a ritualistic formula for doubting the prosecution case and discarding
the same solely on the ground of delay. If the explanation offered is
satisfactory and there is no possibility of embellishment, the delay
should not be treated as fatal to the case of the prosecution.
13. In Ramdas. v. State of Maharashtra, (2007) 2 SCC 170, it has
been ruled that when an FIR is lodged belatedly, it is a relevant fact of
which the court must take notice of, but the said fact has to be
considered in the light of other facts and circumstances of the case. It
is obligatory on the part of the court to consider whether the delay in
lodging the report adversely affects the case of the prosecution and it
would depend upon the matter of appreciation of evidence in totality.
14. In Kilakkatha Parambath Sasi v. State of Kerala, (2011) 4
SCC 552 : AIR 2011 SC 1064, it has been laid down that when an FIR
has been lodged in a belated manner, inference can rightly follow that
the prosecution story may not be true but equally on the other side, if
it is found that there is no delay in the recording of the FIR, it does
not mean that the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in Kanhaiya Lal
v. State of Rajasthan, (2013) 5 SCC 655 : 2013 (6) SCALE 242.
On the other hand, the learned counsel for the 2nd
respondent contended that there is no bar to register a second
crime if the facts and circumstances of a particular case so
warrant.
To substantiate his argument, the learned counsel for the
2nd respondent has drawn my attention to the ratio laid down in
Shivshankar Singh v State of Bihar , wherein the apex Court held as
under:
18. Thus, it is evident that the law does not prohibit filing or
entertaining of the second complaint even on the same facts provided
the earlier complaint has been decided on the basis of insufficient
material or the order has been passed without understanding the
nature of the complaint or the complete facts could not be placed
before the court or where the complainant came to know certain facts
after disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would not be
maintainable wherein the earlier complaint has been disposed of on
full consideration of the case of the complainant on merit.
The learned Additional Public Prosecutor submitted that a
second complaint is maintainable only in exceptional cases.
Let me consider the facts which gave rise for registration of
two F.I.Rs in the light of the principle enunciated in the cased
cited supra.
One of the allegations in Cr.No.82 of 2010 and 38 of 2011
is that the petitioners herein have forged the signature of the
then sarpanch of the village and created a legal heir certificate,
dated 28.03.2006. During the course of investigation, the
investigating officer in Cr.No.82 of 2010 collected the signatures
of the then Sarpanch of the village from the Gram Panchayat
office. He also examined the then Sarpanch by name Varadi
Gurumurthy to ascertain whether the legal heir certificate bears
his signature or not. On verification, the said Gurumurthy
admitted that the legal heir certificate, dated 28.03.2006 bears
his signature. The Investigating Officer compared the signatures
of Gurumurthy on the legal heir certificate with the admitted
signatures of Gurumurthy that were called for by him from the
Gram Panchayat Office. A perusal of the final report clearly
reveals that Gurumurthy admitted his signature on the legal
heir certificate dated 28.03.2006. In such circumstances the
contention of the de-facto complainants in both the complaints
that the legal heir certificate is forged one, prima facie, is not
tenable either on facts or on law.
The substance of both the complaints is that the
petitioners herein gave false evidence before the Labour Court at
Mumbai that the de-facto complainants were neither dependants
nor legal heirs of the deceased. A perusal of Section 2 (d) of the
Workmens Compensation Act clearly demonstrates that the
dependants of the deceased workman alone are entitled to
compensation. It is a known fact that distribution of
compensation amount among the dependents of the deceased
depends upon various factors like age, dependency, future needs
etc of the claimants. The Labour Court at Mumbai has taken
into consideration the age of the de facto complainants and the
first petitioner herein and apportioned the compensation in the
following manner:
First petitioner : Rs.28,85,762/-
De facto complainant in Cr.No.82/2010 : Rs.2,50,000/-
De facto complainant in Cr.No.38/2011 : Rs.2,50,000/-
Apart from this, the de-facto complainants have received
an amount of Rs.6.00 lakhs from an insurance company in
respect of a policy taken by the deceased. After perusing the
order of the Labour Court, prima facie, it is not possible to arrive
at a conclusion that the Labour Court passed the orders basing
on the false evidence adduced by the petitioners, as alleged by
the second respondent. If really the de facto complainants are
not satisfied with the award passed by the Labour Court,
Mumbai, two options are left over to them viz., 1) to file a
petition before the Labour Court for setting aside the same
thereby to pass orders afresh after affording reasonable
opportunity to them, or 2) to file an appeal challenging the order
passed by the Labour Court before appropriate appellate forum
by taking leave, if necessary.
The de facto complainants in both the crimes have not
resorted to any of such remedies available to them under law.
Unless and until the order of the Labour Court is set aside by a
competent Court, the same is binding on the parties to the
proceedings. The fact remains that the de facto complainants in
both the crimes have received the compensation in pursuance of
the orders of the Labour Court without any protest.
Further, the Labour Court at Mumbai has not made any
remarks against the petitioners herein. In such circumstances,
the contention of the de facto complainants in both the crimes
has to be scrutinised meticulously. Even if the allegations made
against the petitioners are ex facie taken to be true and valid,
the same, prima facie, do not satisfy the ingredients of the
alleged offences. Having accepted the compensation without any
protest, the de facto complainants are estopped from challenging
the same. The petitioners 2 to 4 are the own brothers of the first
petitioner. It is a known fact that the brothers will extend their
full cooperation to a widowed sister if exigency so warrants.
Mere accompanying of the petitioners 2 to 4 with the first
petitioner to Mumbai and Gram Panchayat Office by itself will
not constitute an offence.
The de-facto complainant in Cr.No.82 of 2010 did not
choose to file a protest petition as contemplated under Section
190 (1) (a) Cr.P.C. after receipt of the notice from the Court. The
second respondent herein filed the present complaint in all
probabilities after he came to know about the result of the
investigation in the earlier crime. It is not the case of the second
respondent that himself and his wife are not residing under the
same roof. The second respondent herein, being the husband of
the de facto complainant in Cr.No.82 of 2010, precluded to plead
ignorance of the result of the investigation in Cr.No.82 of 2010.
It is not uncommon that the wife and husband after mutual
consultations and discussions only take decision in the family
affairs. In the instant case, the de facto complainants in both
the crimes have grievance against the first petitioner for the
reason that she was awarded major portion of the compensation.
In such circumstances, one cannot independently approach the
police without consulting the other spouse. Though two
complaints are filed by two different persons, the ultimate object
of both the de facto complainants is one and the same i.e. to
somehow trouble the first petitioner.
A perusal of the averments in the complaint prima facie
demonstrate that both the de-facto complainants are not
satisfied with the amount of compensation awarded to them. An
act or omission on the part of an individual may constitute an
offence. The set of facts in both the complaints which give rise to
the alleged offence is one and the same. The Labour Court at
Mumbai passed orders on 10.08.2006. The second respondent
filed the complaint on 12.04.2011. There is a delay of nearly five
years in lodging the complaint. It is a settled principle of law
that mere delay in lodging complaint by itself is not a sufficient
ground to disbelieve the version of the prosecution/complainant,
provided that the complainant offers a satisfactory or reasonable
explanation for such delay. There is no change of circumstances
in between the date of passing of the orders by the Labour Court
at Mumbai and lodging of present complaint. The only change
of circumstance in between this period is that Cr.No.82 of 2010
was referred as mistake of fact.
There is every possibility for lodging the present complaint
by the second respondent with an ulterior motive to outsmart
the provisions of Cr.P.C., thereby to continue the criminal
proceedings against the petitioners more particularly against the
first petitioner, even after closing Crime No.82 of 2010 filed by
the wife of second respondent. A perusal of the allegations made
in the complaint clearly demonstrates that the defacto-
complainants were very much frustrated with the amount
awarded to them by the Labour Court. By any means to get
some share out of the compensation amount awarded to the first
petitioner by the Labour Court, filing of criminal cases by the
defacto-complainants one after the other is nothing but abuse of
process of law. One should not be allowed to use the criminal
court as instrumentality to take personal vengeance by filing
frivolous and vexatious complaints.
In Kishan Singh Vs. Gurpal Singh the Supreme Court
observed as follows:
In cases where there is a delay in lodging an FIR, the court
has to look for a plausible explanation for such delay. In the
absence of such an explanation, the delay may be fatal. The
reason for quashing such proceedings may not be merely that
the allegations were an afterthought or had given a coloured
version of events. In such cases the court should carefully
examine the facts before it for the reason that a frustrated
litigant who failed to succeed before the civil court may initiate
criminal proceedings just to harass the other side with mala
fide intentions or the ulterior motive of wreaking vengeance on
the other party. Chagrined and frustrated litigants should not
be permitted to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal court. The court
proceedings ought not to be permitted to degenerate into a
weapon of harassment and persecution. In such a case, where
an FIR is lodged clearly with a view to spite the other party
because of a private and personal grudge and to enmesh the
other party in long and arduous criminal proceedings, the court
may take a view that it amounts to an abuse of the process of
law in the facts and circumstances of the case. (Vide
Chandrapal Singh v. Maharaj Singh , State of Haryana v.
Bhajan Lal , G. Sagar Suri v. State of U.P and Gorige Pentaiah
v. State of A.P )
The Apex Court in R.P.Kapoor v. State of Punjab , held as
hereunder:
"Cases may also arise where the allegations in the F.I.R. or the
complaint even if they are taken at their face value and accepted in
their entirety do not constitute the offence alleged. In such cases, no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In this case it would
be legitimate to the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against
the accused person."
In State of Haryana v. Bhajanlal the Apex Court after
having surveyed the entire case law on the point has laid down
certain indicia with reference to which, a High Court may in
exercise of powers under Article 226 of the Constitution of
India or under Section 482 Cr.P.C may interfere in proceedings
relating to cognizable offences to prevent abuse of the process
of any court or otherwise to secure the ends of justice.
In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts. Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed. As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
_________________________
T.SUNIL CHOWDARY, J
Date 23.07.2014
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of 2010 as mistake of fact, would certainly amount to abuse of process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of facts. Viewed from factual or legal aspects, it is a fit case to quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking the inherent jurisdiction under Section 482 Cr.P.C not only to prevent abuse of process of law but also to secure the ends of
justice. In the result, the Criminal Petition is allowed and the proceedings in Cr.No.38 of 2011 of Gara Police Station, Srikakulam District against petitioners/A.1 to A.6 are hereby quashed.=
The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased
died on 20.05.2005 while working as seaman in Wilco Ship
Management & Travels Private Limited, Mumbai. The employer
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased. For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased. Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the
Commissioner for Workmens Compensation Act-cum-Labour
Court at Mumbai. The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same
was allowed on 10.08.2006 awarding compensation of
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report. After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant. In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai. Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.=
In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts. Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed. As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11692
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.3712 OF 2011
23-07-2014
Bondi Janaki and Others...PETITIONERS
1.State of A.P., rep. by its Public Prosecutor
2.Bondi Korlayya...RESPONDENTS
Counsel for Petitioners : Sri B.M. Patro
Counsel for Respondent No.1: Additional Public Prosecutor
Counsel for Respondent No.2: Sri Kuriti Bhaskara Rao
<GIST:
>HEAD NOTE:
? Cases referred
(2010) 12 SCC 254
2 (2001) 6 SCC 181
3 (2013) 5 SCC 148
4 (2013) 2 SCC 435
5 (2010) 8 SCC 775
6 (2013) 7 SCC 45
7 (2012) 1 SCC 130
8 (2010) 8 SCC 775
9 (1982) 1 SCC 466
10 AIR 1992 SC 604
11 (2000) 2 SCC 636
12 (2008) 12 SCC 531
13 AIR 1960 SC 866
14 AIR 1982 SC 604
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.3712 OF 2011
ORDER:
This petition is filed under Section 482 Cr.P.C. to quash
the proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District.
The factual matrix, leading to the filing of the present
petition, are as follows:
First petitioner is the wife, 2nd respondent is the father and
the de-facto complainant in Cr.No.82 of 2010 of P.S. Gara is the
mother of one Bondi Bhujanga Rao (hereinafter referred to as
the deceased). The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased
died on 20.05.2005 while working as seaman in Wilco Ship
Management & Travels Private Limited, Mumbai. The employer
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased. For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased. Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the
Commissioner for Workmens Compensation Act-cum-Labour
Court at Mumbai. The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same
was allowed on 10.08.2006 awarding compensation of
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report. After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant. In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai. Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.
Heard the learned counsel for the petitioners, the learned
counsel for the 2nd respondent and the learned Additional Public
Prosecutor appearing for the State.
The learned counsel for the petitioners submitted that it is
a fit case to quash the proceedings in view of the principles viz.,
1) registration of second FIR in respect of an act or omission on
the part of an individual or individuals, which constitute the
alleged offence, is not legally sustainable; and 2) there is
abnormal delay in lodging the complaint. To substantiate the
submissions, the learned counsel has relied upon the following
decisions:
I. Babubhai v State of Gujarat
21. In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness is
to be applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same transaction. If the
answer is affirmative, the second FIR is liable to be quashed. However,
in case, the contrary is proved, where the version in the second FIR is
different and they are in respect of the two different incidents/crimes,
the second FIR is permissible. In case in respect of the same incident
the accused in the first FIR comes forward with a different version or
counter claim, investigation on both the FIRs has to be conducted.
II. T.T.Antony v State of Kerala
27. A just balance between the fundamental rights of the citizens
under Articles 19 and 21 of the Constitution and the expansive
power of the police to investigate a cognizable offence has to be
struck by the court. There cannot be any controversy that sub-
section (8) of Section 173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and documentary)
and forward a further report or reports to the Magistrate. In Ram Lal
Narang Vs. State (Delhi Admn.) {(1979) 2 SCC 322} it was, however,
observed that it would be appropriate to conduct further
investigation with the permission of the court. However, the sweeping
power of investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the same
incident, giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing the final
report under Section 173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a case of abuse of the
statutory power of investigation in a given case. In our view a case of
fresh investigation based on the second or successive FIRs, not being
a counter case, filed in connection with the same or connected
cognizable offence alleged to have been committed in the course of
the same transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 Cr.P.C. or under Article
226/227 of the Constitution.
III. Surender Kaushik v State of Uttar Pradesh
24. From the aforesaid decisions, it is quite luminous that the
lodgment of two FIRs is not permissible in respect of one and the
same incident. The concept of sameness has been given a restricted
meaning. It does not encompass filing of a counter FIR relating to the
same or connected cognizable offence. What is prohibited is any
further complaint by the same complainant and Ors. against the same
accused subsequent to the registration of the case under the Code, for
an investigation in that regard would have already commenced and
allowing registration of further complaint would amount to an
improvement of the facts mentioned in the original complaint. As is
further made clear by the three-Judge Bench in Upkar Singh v Ved
Prakash, (2004) 13 SCC 292, the prohibition does not cover the
allegations made by the accused in the first FIR alleging a different
version of the same incident. Thus, rival versions in respect of the
same incident do take different shapes and in that event, lodgment of
two FIRs is permissible.
IV. Udai Shankar Awasthi v State of U.P. ,
47. The instant appeals are squarely covered by the observations
made in Kishan Singh (dead) thr. L.Rs. v Gurpal Singh and Ors. ,
(Supra) and thus, the proceedings must be labeled as nothing more
than an abuse of the process of the court, particularly in view of the
fact that, with respect to enact the same subject matter, various
complaint cases had already been filed by Respondent No. 2 and his
brother, which were all dismissed on merits, after the examination of
witnesses. In such a fact-situation, Complaint Case No. 628 of 2011,
filed on 31.5.2001 was not maintainable. Thus, the Magistrate
concerned committed a grave error by entertaining the said case, and
wrongly took cognizance and issued summons to the Appellants.
V. Harivadan Babubhai Patel v State of Gujarat
12. In this context, we may refer with profit to the authority in State
of H.P. v. Gian Chand, (2001) 6 SCC 71, wherein a three-Judge
Bench has opined that the delay in lodging the FIR cannot be used as
a ritualistic formula for doubting the prosecution case and discarding
the same solely on the ground of delay. If the explanation offered is
satisfactory and there is no possibility of embellishment, the delay
should not be treated as fatal to the case of the prosecution.
13. In Ramdas. v. State of Maharashtra, (2007) 2 SCC 170, it has
been ruled that when an FIR is lodged belatedly, it is a relevant fact of
which the court must take notice of, but the said fact has to be
considered in the light of other facts and circumstances of the case. It
is obligatory on the part of the court to consider whether the delay in
lodging the report adversely affects the case of the prosecution and it
would depend upon the matter of appreciation of evidence in totality.
14. In Kilakkatha Parambath Sasi v. State of Kerala, (2011) 4
SCC 552 : AIR 2011 SC 1064, it has been laid down that when an FIR
has been lodged in a belated manner, inference can rightly follow that
the prosecution story may not be true but equally on the other side, if
it is found that there is no delay in the recording of the FIR, it does
not mean that the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in Kanhaiya Lal
v. State of Rajasthan, (2013) 5 SCC 655 : 2013 (6) SCALE 242.
On the other hand, the learned counsel for the 2nd
respondent contended that there is no bar to register a second
crime if the facts and circumstances of a particular case so
warrant.
To substantiate his argument, the learned counsel for the
2nd respondent has drawn my attention to the ratio laid down in
Shivshankar Singh v State of Bihar , wherein the apex Court held as
under:
18. Thus, it is evident that the law does not prohibit filing or
entertaining of the second complaint even on the same facts provided
the earlier complaint has been decided on the basis of insufficient
material or the order has been passed without understanding the
nature of the complaint or the complete facts could not be placed
before the court or where the complainant came to know certain facts
after disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would not be
maintainable wherein the earlier complaint has been disposed of on
full consideration of the case of the complainant on merit.
The learned Additional Public Prosecutor submitted that a
second complaint is maintainable only in exceptional cases.
Let me consider the facts which gave rise for registration of
two F.I.Rs in the light of the principle enunciated in the cased
cited supra.
One of the allegations in Cr.No.82 of 2010 and 38 of 2011
is that the petitioners herein have forged the signature of the
then sarpanch of the village and created a legal heir certificate,
dated 28.03.2006. During the course of investigation, the
investigating officer in Cr.No.82 of 2010 collected the signatures
of the then Sarpanch of the village from the Gram Panchayat
office. He also examined the then Sarpanch by name Varadi
Gurumurthy to ascertain whether the legal heir certificate bears
his signature or not. On verification, the said Gurumurthy
admitted that the legal heir certificate, dated 28.03.2006 bears
his signature. The Investigating Officer compared the signatures
of Gurumurthy on the legal heir certificate with the admitted
signatures of Gurumurthy that were called for by him from the
Gram Panchayat Office. A perusal of the final report clearly
reveals that Gurumurthy admitted his signature on the legal
heir certificate dated 28.03.2006. In such circumstances the
contention of the de-facto complainants in both the complaints
that the legal heir certificate is forged one, prima facie, is not
tenable either on facts or on law.
The substance of both the complaints is that the
petitioners herein gave false evidence before the Labour Court at
Mumbai that the de-facto complainants were neither dependants
nor legal heirs of the deceased. A perusal of Section 2 (d) of the
Workmens Compensation Act clearly demonstrates that the
dependants of the deceased workman alone are entitled to
compensation. It is a known fact that distribution of
compensation amount among the dependents of the deceased
depends upon various factors like age, dependency, future needs
etc of the claimants. The Labour Court at Mumbai has taken
into consideration the age of the de facto complainants and the
first petitioner herein and apportioned the compensation in the
following manner:
First petitioner : Rs.28,85,762/-
De facto complainant in Cr.No.82/2010 : Rs.2,50,000/-
De facto complainant in Cr.No.38/2011 : Rs.2,50,000/-
Apart from this, the de-facto complainants have received
an amount of Rs.6.00 lakhs from an insurance company in
respect of a policy taken by the deceased. After perusing the
order of the Labour Court, prima facie, it is not possible to arrive
at a conclusion that the Labour Court passed the orders basing
on the false evidence adduced by the petitioners, as alleged by
the second respondent. If really the de facto complainants are
not satisfied with the award passed by the Labour Court,
Mumbai, two options are left over to them viz., 1) to file a
petition before the Labour Court for setting aside the same
thereby to pass orders afresh after affording reasonable
opportunity to them, or 2) to file an appeal challenging the order
passed by the Labour Court before appropriate appellate forum
by taking leave, if necessary.
The de facto complainants in both the crimes have not
resorted to any of such remedies available to them under law.
Unless and until the order of the Labour Court is set aside by a
competent Court, the same is binding on the parties to the
proceedings. The fact remains that the de facto complainants in
both the crimes have received the compensation in pursuance of
the orders of the Labour Court without any protest.
Further, the Labour Court at Mumbai has not made any
remarks against the petitioners herein. In such circumstances,
the contention of the de facto complainants in both the crimes
has to be scrutinised meticulously. Even if the allegations made
against the petitioners are ex facie taken to be true and valid,
the same, prima facie, do not satisfy the ingredients of the
alleged offences. Having accepted the compensation without any
protest, the de facto complainants are estopped from challenging
the same. The petitioners 2 to 4 are the own brothers of the first
petitioner. It is a known fact that the brothers will extend their
full cooperation to a widowed sister if exigency so warrants.
Mere accompanying of the petitioners 2 to 4 with the first
petitioner to Mumbai and Gram Panchayat Office by itself will
not constitute an offence.
The de-facto complainant in Cr.No.82 of 2010 did not
choose to file a protest petition as contemplated under Section
190 (1) (a) Cr.P.C. after receipt of the notice from the Court. The
second respondent herein filed the present complaint in all
probabilities after he came to know about the result of the
investigation in the earlier crime. It is not the case of the second
respondent that himself and his wife are not residing under the
same roof. The second respondent herein, being the husband of
the de facto complainant in Cr.No.82 of 2010, precluded to plead
ignorance of the result of the investigation in Cr.No.82 of 2010.
It is not uncommon that the wife and husband after mutual
consultations and discussions only take decision in the family
affairs. In the instant case, the de facto complainants in both
the crimes have grievance against the first petitioner for the
reason that she was awarded major portion of the compensation.
In such circumstances, one cannot independently approach the
police without consulting the other spouse. Though two
complaints are filed by two different persons, the ultimate object
of both the de facto complainants is one and the same i.e. to
somehow trouble the first petitioner.
A perusal of the averments in the complaint prima facie
demonstrate that both the de-facto complainants are not
satisfied with the amount of compensation awarded to them. An
act or omission on the part of an individual may constitute an
offence. The set of facts in both the complaints which give rise to
the alleged offence is one and the same. The Labour Court at
Mumbai passed orders on 10.08.2006. The second respondent
filed the complaint on 12.04.2011. There is a delay of nearly five
years in lodging the complaint. It is a settled principle of law
that mere delay in lodging complaint by itself is not a sufficient
ground to disbelieve the version of the prosecution/complainant,
provided that the complainant offers a satisfactory or reasonable
explanation for such delay. There is no change of circumstances
in between the date of passing of the orders by the Labour Court
at Mumbai and lodging of present complaint. The only change
of circumstance in between this period is that Cr.No.82 of 2010
was referred as mistake of fact.
There is every possibility for lodging the present complaint
by the second respondent with an ulterior motive to outsmart
the provisions of Cr.P.C., thereby to continue the criminal
proceedings against the petitioners more particularly against the
first petitioner, even after closing Crime No.82 of 2010 filed by
the wife of second respondent. A perusal of the allegations made
in the complaint clearly demonstrates that the defacto-
complainants were very much frustrated with the amount
awarded to them by the Labour Court. By any means to get
some share out of the compensation amount awarded to the first
petitioner by the Labour Court, filing of criminal cases by the
defacto-complainants one after the other is nothing but abuse of
process of law. One should not be allowed to use the criminal
court as instrumentality to take personal vengeance by filing
frivolous and vexatious complaints.
In Kishan Singh Vs. Gurpal Singh the Supreme Court
observed as follows:
In cases where there is a delay in lodging an FIR, the court
has to look for a plausible explanation for such delay. In the
absence of such an explanation, the delay may be fatal. The
reason for quashing such proceedings may not be merely that
the allegations were an afterthought or had given a coloured
version of events. In such cases the court should carefully
examine the facts before it for the reason that a frustrated
litigant who failed to succeed before the civil court may initiate
criminal proceedings just to harass the other side with mala
fide intentions or the ulterior motive of wreaking vengeance on
the other party. Chagrined and frustrated litigants should not
be permitted to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal court. The court
proceedings ought not to be permitted to degenerate into a
weapon of harassment and persecution. In such a case, where
an FIR is lodged clearly with a view to spite the other party
because of a private and personal grudge and to enmesh the
other party in long and arduous criminal proceedings, the court
may take a view that it amounts to an abuse of the process of
law in the facts and circumstances of the case. (Vide
Chandrapal Singh v. Maharaj Singh , State of Haryana v.
Bhajan Lal , G. Sagar Suri v. State of U.P and Gorige Pentaiah
v. State of A.P )
The Apex Court in R.P.Kapoor v. State of Punjab , held as
hereunder:
"Cases may also arise where the allegations in the F.I.R. or the
complaint even if they are taken at their face value and accepted in
their entirety do not constitute the offence alleged. In such cases, no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In this case it would
be legitimate to the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against
the accused person."
In State of Haryana v. Bhajanlal the Apex Court after
having surveyed the entire case law on the point has laid down
certain indicia with reference to which, a High Court may in
exercise of powers under Article 226 of the Constitution of
India or under Section 482 Cr.P.C may interfere in proceedings
relating to cognizable offences to prevent abuse of the process
of any court or otherwise to secure the ends of justice.
In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court. There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts. Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed. As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
_________________________
T.SUNIL CHOWDARY, J
Date 23.07.2014
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