Rajendra Dhar Dubey vs State Of Chhattisgarh
2022 Latest Caselaw 3803 Chatt

                                                                             WPCR 157/2021
                                       -1-




                                                                           AFR

              HIGH COURT OF CHHATTISGARH, BILASPUR
                               WPCR No. 157 of 2021
                                             Judgment reserved on 11.11.2021
                                         Judgment delivered on 16.06.2022


1. Rajendra Dhar Dubey S/o Late Bhairav Dhar Dubey Aged About 70
   Years (Retired Government Employee), Resident of Village Bouripara,
   Heera Hardware Gali, Ambikapur, District Surguja Chhattisgarh.

2. Smt. Kaushilya Devi W/o Rajendra Dhar Dubey Aged About 65 Years
   Resident of Village Bouripara, Heera Hardware Gali, Ambikapur, District
   Surguja Chhattisgarh.

3. Animesh Dhar Dubey S/o Rajendra Dhar Dubey Aged About 38 Years
   Resident of Village Bouripara, Heera Hardware Gali, Ambikapur, District
   Surguja Chhattisgarh.

4. Mithlesh Dhar Dubey S/o Rajendra Dhar Dubey Aged About 38 Years
   Assistant Engineer (C.S.P.C.L.), Police Station Bilaspur, District Bilaspur
   Chhattisgarh.
                                                                ------Petitioners

                                      VERSUS

1. State of Chhattisgarh Through Secretary, Department of Home Affairs,
   Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur
   Chhattisgarh.
2. Director General of Police Police Headquarters, Naya Raipur, District
   Raipur Chhattisgarh.
3. Inspector General of Police Police Range, Surguja, District Surguja
   Chhattisgarh.
4. Superintendent of Police Ambikapur, District Surguja Chhattisgarh.
5. Station House officer Police Station Kotwali, Ambikapur, District Surguja
   Chhattisgarh.
6. Ravindra Kumar Dhar Dubey S/o Late Loknath Dhar Dubey Aged About
   49 Years R/o Harra Tikra, Ambikapur, District Surguja Chhattisgarh.
                                                            -------Respondents

For Petitioners : Mr. Pushpendra Singh Baghel, Advocate For Respondent-State : Mr. Vinod Tekam, Panel Lawyer For Respondent No. 6 : Mr. Govind Dewangan, Advocate

SB: Hon'ble Shri Parth Prateem Sahu, Judge C.A.V. JUDGMENT

1. Petitioners have filed this writ petition with the following reliefs:

                   "10.1    That, the Hon'ble Court may kindly be
                                                                            WPCR 157/2021

pleased to direct the Police Authority to explain the proper reason for registering false and fabricated FIR against the petitioners.

10.2 That, the Hon'ble Court may kindly be pleased to quash the FIR registered against the petitioners in crime no. 34/2021 u/s 419, 420, 467, 468 & 120-B of IPC.

10.3 That, the Hon'ble Court may kindly be pleased to issue a writ of mandamus or any appropriate writs/order directing the respondent no. 1 to 5 not to take any coercive step against the petitioners till the final disposal of the writ petition.

10.4 Any other relief, which may be deemed fit and proper in the facts and circumstances of the case, may also be allowed, in the interest of justice."

2. Brief facts relevant for disposal of this petition are that police of police

station Ambikapur, district Ambikapur, Surguja, registered FIR bearing

crime No. 34/2021 based on the written report dated 10.08.2020 by

complainant Ravindra Kumar Dubey (Respondent 6) for offence

defined under Sections 419, 420, 467, 468 and 120-B of IPC. The

allegations levelled in the complaint are to the effect that the petitioners

No. 1 and 2 are uncle and aunt and petitioners No. 3 and 4 are cousin

brothers of Respondent No. 6/ complainant. Petitioners approached

Respondent No. 6 stating that Petitioner No. 1 is suffering with kidney

ailment and doctor has suggested for transplantation of his kidney.

Petitioners No. 2 to 4 were not found to be fit to donate their kidneys to

Petitioner No. 1 and it is Respondent No. 6 only found fit to donate

kidney, and can save life of Petitioner No. 1. Petitioners have proposed

him that they would transfer a piece of land in his name, construct

house on it and also to take care of his family as well as make

arrangement of education of his children. WILL was executed by

Respondent No. 1 bequeathing portion of land in favour of Respondent

No. 6. He was taken to Post Graduate Institution (PGI), Lucknow,

showing Respondent No. 6 to be son of Petitioners No. 1 and 2 got his WPCR 157/2021

kidney transplanted to Petitioner No. 1. After some time, petitioners

have sold the land of which WILL was executed in his favour and have

also stopped taking care of his family. The WILL which was executed in

favour of Respondent No. 6 was cancelled by Petitioner No. 1 by

executing WILL cancellation deed before the Sub-Registrar, Ambikapur

dated 28.01.2012. Based on the written report, aforementioned FIR

was registered for the offence as mentioned above against all the

petitioners.

3. Mr. Pushpendra Singh Baghel, learned counsel for petitioners would

submit that Petitioner No. 1 was suffering with kidney ailment. Doctor

recommended for transplantation of his kidney but unfortunately due to

mismatch of necessary medical requirements, petitioners No. 2 to 4

were not found fit to donate their kidneys to Petitioner No. 1.

Respondent No. 6 being nephew of Petitioner No. 1, when came to

know, he with his own will, donated his one kidney to Petitioner No. 1

and in the month of January 2007 procedure of transplantation of

kidney was successfully completed. Respondent No. 6 earlier on the

same allegations have lodged complaint with police station Bhatgaon

district Surajpur on 23.01.2013 (Annexure P-2) and also before the

Superintendent of Police, Surajpur on 31.01.2013 (Annexure P-3).

When the police have not taken any action on the complaint,

Respondent No. 6 filed complaint application under Section 200 of

CrPC before the Court of jurisdictional Magistrate, Surajpur making

allegation of commission of offence defined under Sections 420, 467,

468, 120-B and 109/34 of IPC. Learned Magistrate dismissed the

complaint application on 23.08.2014 which was put to challenge by fling

a revision before the Court of Second Additional Sessions Judge,

Surajpur which also came to be dismissed vide order dated

09.04.2015. After dismissal of revision, complainant/ petitioner filed WPCR 157/2021

miscellaneous petition under Section 482 of CrPC before the High

Court, registered as Cr.M.P. No. 503/2015, which was withdrawn on

17.09.2019 vide Annexure P-7 reserving liberty to file complaint before

the appropriate authority. Once the complaint filed on the same

allegations was dismissed by reasoned order by the Magistrate after

applying its mind considering material produced before him and the oral

evidence of complainant, the subsequent FIR is not maintainable which

was lodged by the complainant on same allegations after dismissal of

complaint case and also the revision on merits by the Magistrate and

Court of Additional Sessions Judge. Petitioner suppressing material

fact of dismissal of earlier complaint by Magistrate, revision by

Sessions Judge and order of High Court, again lodged fresh report

before other police station at Ambikapur in the year 2020. In lodging

new report, Respondent No. 6 has not mentioned of earlier complaint

filed before the police station, Bhatgaon, Surajpur, complaint case filed

before the jurisdictional Magistrate and also the dismissal of

complaint as well as revision by the Magistrate and Additional

Sessions Judge, respectively, on merits. He also contended that the

High Court while exercising its power under Section 482 of CrPC in

a criminal miscellaneous petition challenging the order of dismissal

of Criminal Revision also came to the conclusion that there is no

merit in the Criminal Miscellaneous Petition (Cr.M.P.) and therefore

the same was withdrawn wherein the only observation is made of

granting liberty to file complaint before the appropriate authority. He

contended that the appropriate authority as observed by High Court

in an order passed in Cr.M.P. would not mean another report before

the other police station. The second/ another complaint at different

police station on same facts and allegation is an abuse of

process of law and is not sustainable in the eyes of law. On

the aforementioned grounds he submits that the subsequent FIR No. WPCR 157/2021

34/2021 registered against petitioners be quashed.

4. Learned counsel for petitioners placed his reliance on the judgment

passed by Hon'ble Supreme Court in case of T.T. Antony vs. State of

Kerala and others passed in Appeal (Crl.) No. 689/2001 decided on

12.07.2001 and in case of Kapil Agrawal and others vs. Sanjay

Sharma and others passed in Criminal Appeal No. 142/2021 decided

on 01.03.2021.

5. Mr. Govind Dewangan, learned counsel for Respondent No. 6, while

opposing the submissions of learned counsel for petitioners would

submit that when Petitioner No. 1 was taken to hospital and the medical

requirements of other family members found to be unfit to donate their

kidney, Respondent No. 6 was taken to hospital who was found

suitable and fit to donate his kidney to Petitioner No. 1. Petitioners in

lieu of donation of his kidney executed one WILL bequeathing piece of

land and have given assurance of constructing house over it, taking

care of his family and education of his children but when transplantation

was successfully done and Petitioner No. 1 got well, petitioners turned

down from their words and assurance and sold the land bequeathed in

his favour by executing registered sale deed. Petitioner No. 1 also

executed WILL cancellation deed, stopped taking care of his family.

Petitioners by playing fraud, prepared forged and fabricated documents

which was complained to the concerned police station and when FIR

was not registered, complainant filed complaint case in the court of

judicial Magistrate which came to be dismissed. Thereafter, revision

against the dismissal of complaint was also dismissed. Order of

revision was put to challenge in Cr.M.P. No. 503/2015 before the High

Court which was disposed of with liberty to approach appropriate

authority for lodging FIR and therefore present report was lodged

before the police station kotwali, Ambikapur, hence, no interference is WPCR 157/2021

called for at this stage in registration of FIR. Interference in registration

of FIR by High Court can be only in the rarest of rare case and instant

petition does not fall within the category of rarest of rare case. The FIR

is not an encyclopedia which must disclose all the facts and details

relating to the offence reported. Significance of lodging of FIR is that

the information given must disclose the commission of a cognizable

offence. In support of his contentions, he placed reliance upon the

judgment of Hon'ble Supreme Court in case of Satvinder Kaur vs.

State (Govt. of NCT of Delhi) and another reported in (1999) 8 SCC

728. He also submits that the provision under Section 173(8) of CrPC

provides for the power to investigate the matter and collect further

evidence and to file supplementary charge-sheet, hence, there is not

merit in this writ petition.

6. Mr. Vinod Tekam, learned State counsel for Respondents 1 to 5, would

submit that based on the written report submitted by Respondent No. 6,

FIR was registered which is under investigation, hence, at this stage of

ongoing investigation, petitioners are not entitle for the relief of

quashment of FIR.

7. I have heard learned counsel for the parties and also perused the

documents placed on record.

8. There is no dispute in the facts of the case that Respondent No. 6

made allegation against petitioners of playing fraud, preparing forged

documents for getting kidney transplantation to Petitioner No. 1, selling

of property bequeathed in his favour by executing a WILL and further

cancellation of the WILL by executing another deed for cancellation of

WILL was reported to concerned police station, S.H.O. police station

Bhatgaon, district Surajpur on 23.01.2013. When no action was taken,

report was lodged before the Superintendent of Police on 31.01.2013.

WPCR 157/2021

Respondent No. 6 realizing that no action was taken by police on his

complaint has filed complaint case before the Judicial Magistrate, 1 st

Class, Surajpur on 22.02.2013 against petitioners, making allegations

of commission of offence under Section 420, 467, 468, 120-B, 109/34

of IPC. The complaint application is filed along with application for

taking documents on record by Respondent No. 6 as Annexure D-2.

The complaint application filed before the jurisdictional Magistrate was

processed for registration, statement of complainant was recorded and

the Magistrate came to conclusion that there is no sufficient grounds for

proceeding and dismissed the complaint. The order of dismissal of

complaint on the stage of registration was put to challenge by way of

filing a revision before the Second Additional Sessions Judge, Surajpur

which also came to be dismissed on merits affirming the order passed

by Chief Judicial Magistrate (CJM), Surajpur. The order of dismissal of

revision was put to challenge before the High Court under Section 482

of CrPC which was withdrawn with liberty to file complaint before the

appropriate authority.

9. Perusal of complaint would show that petitioners came to the house of

complainant at village Anrokha, police station Bhatgaon, district

Surajpur and asked him to donate kidney to Petitioner No. 1 and

offered him transfer of piece of land in his favour by executing a WILL.

The contents of written report before police station Bhatgaon,

application for complaint filed before the CJM, Surajpur and the

contents of FIR under challenge are one and the same.

10. In the aforementioned facts of the case, the question for consideration

is whether after dismissal of complaint case by the CJM, recording of

finding that there are no sufficient grounds for proceeding which was

not disturbed till proceeding before High Court, registration of FIR on

the same allegations before another police station will be sustainable or WPCR 157/2021

not?

11. The law with regard to filing of subsequent complaint after dismissal of

first complaint is well settled by Hon'ble Supreme Court by holding that

there is no specific bar in filing of second complaint on same

allegations but the second complaint is to be entertained only in

exceptional circumstances. Hon'ble Supreme Court in case of

Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar reported in AIR

1962 SC 876 has observed that for entertaining second complaint

exceptional circumstances must exist and held thus:

"48. ...Therefore, if he has not misdirected himself as to the scope of the enquiry made under Section 202 of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203 of the 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, i.e., 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 interests 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 Allah Ditta v. Karam Baksh (AIR 1930 Lahore 879); Ram Narain Chaubey v. Panachand Jain ((AIR 1949 Pat 256); Hansabai Sayaji Payagude v. Ananda Ganuji Payagude (AIR 1949 Bom 384); Doraisami Aiyar v. Subramania Aiya (AIR 1918 Mad 484). In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above-quoted and adopted the opinion of Macleam, C.J. in Queen Empress v. Dolegobind Dass (ILR (1901) 28 Cal 211), affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee (ILR (1901) 28 Cal 652). It held, therefore, that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming."

WPCR 157/2021

12. In case of Bindeshwari Prasad Singh vs. Kali Singh reported in

(1977) 1 SCC 57, Hon'ble Supreme Court has held that it is now well

settled that the second complaint can lie only on fresh facts or even on

previous facts only if a special case is made out. In case of Mahesh

Chand vs. B. Janardhan Reddy and Anr reported in (2003) 1 SCC

734, Supreme Court again reiterated that second complaint on the

same facts could 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.

13. Hon'ble Supreme Court in case of Kapil Agrawal (supra), considering

the issue of registration of FIR has held thus:

"6. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

6.1 As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing upon accused, in exercise of inherent powers, such proceedings can be quashed.

6.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves te inherent power of the High Court, as a superior court, to make such orders as are necessary (I) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers WPCR 157/2021

under Article 226 of the Constitution.

7. Applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand, subsequent FIR filed by the respondent -

original complainant can be said to be an abuse of process of law and the same to be brining pressure on the accused, which can be demonstrated from the following facts:

i) cheque no. 038611 was presented for encashment and the same came to be dishonoured by the banker of the complainant due to "insufficient funds";

ii) that the company - VBL served statutory legal notices upon the complainant under the provisions of the Negotiable Instruments Act;

iii) that thereafter complaint under Section 138 of the Negotiable Instruments Act has been filed by the company against the respondent-original complainant on 7.11.2014;

iv) that thereafter, after a period of three months, respondent no. 1 filed an application under Section 156(3) Cr.P.C. seeking registration of FIR against the appellants herein, i.e., in the month of February, 2015;

v) the learned Magistrate declined to order registration of FIR, but decided to inquire into the matter by treating the same as complaint case and granted respondent no. 1 - original complainant an opportunity of recording solemn affirmation under Section 200 Cr.PC. (order dated 23.03.2015). Order dated 23.03.2015 came to be set aside by the learned Sessions Judge vide order dated 8.7.2015 and the matter was remanded to the learned Magistrate with directions to pass a speaking order. The same is pending before the learned Magistrate;

vi) that thereafter after a period of two years, R1 lodged the impugned FIR against the appellants with police station Loni Border, District Ghaziabad with the similar contents and allegations which were levelled in the application under Section 156(3) Cr.PC. In the FIR, the date of occurrence of the offence has been shown as 26.07.2017;

vii) it appears that R1 is not proceeding further with his application under Section 156(3) Cr.P.C. which is pending before the learned Magistrate since last five years;

viii) in the FIR, neither there is any reference to the application under Section 156(3) Cr.P.C. which is pending before the learned Magistrate, nor there is a reference of the complaint under Section 138 of the NI Act.

WPCR 157/2021

Under the circumstances, the impugned FIR is nothing but an abuse of process of law and can be said to be filed with a view of harass the appellants."

14. If the case at hand is tested in view of the law laid down by the Hon'ble

Supreme Court wherein it is held that the second complaint though not

barred after dismissal of the first complaint under Section 203 of CrPC

but for maintaining and entertaining second complaint it is made

mandatory that exceptional circumstances must exist.

15. Perusal of the written report filed before the police station Bhatgaon,

district Surajpur on 23.01.2013, complaint case filed before the Judicial

Magistrate, Surajpur of not registering FIR on the complaint dated

23.01.2013 and the contents of FIR lodged based on the complaint

dated 10.08.2020 would show that allegations and facts are one and

the same. There is no mention of additional fact or any exceptional

circumstances rising for lodging subsequent FIR before the police

station. In fact, bare reading of the contents of FIR in question would

show that Respondent No. 6 has not mentioned about lodging of earlier

report before police station Bhatgaon, filing the complaint case before

the judicial Magistrate and its dismissal, dismissal of revision by

Sessions Judge challenging the order of dismissal of complaint case

and further the Criminal Miscellaneous Petition filed before High Court

challenging order of revision was dismissed as withdrawn. Hon'ble

Supreme Court in case of State of Haryana vs. Bhajanlal reported in

(1992) Suppl. (1) SCC 335 has laid down certain principles for

quashing of FIR/ criminal proceedings wherein the grounds under

which the interference can be made has held that, High Courts in the

interest of justice can pass such orders as may be necessary to

prevent abuse of process of law or otherwise to secure the ends of

justice.

WPCR 157/2021

16. Hon'ble Supreme Court in case of Kapil Agrawal (supra) considering

that there is no mention of proceeding under Section 156(3) of CrPC

pending before the Magistrate Court. Nor is there any reference of

complaint under Section 138 of Negotiable Instruments Act, held that

filing of FIR to be an abuse of process of law and with a view to harass

the appellant(s).

17. As no exceptional circumstances are mentioned in the FIR, contrary

Respondent No. 6 has suppressed the earlier proceedings which

travelled upto High Court and respondent lost in all forums, was

material fact. In the opinion of this Court, lodging of FIR on same facts,

and absence of any new material or exceptional circumstance will fall

within the category of abuse of process of law. Hence, I am of the

considered view that the course adopted by Respondent No.6 of filing

report again in the year 2020 before another police station suppressing

the material facts of dismissal of criminal complaint case on same

allegations in the year 2014 which was maintained upto High Court, is

an abuse of process of law.

18. For the foregoing observation and reasons, writ petition is allowed and

FIR bearing No. 34/2021 registered at police station Ambikapur, District

Ambikapur, Surguja, Chhattisgarh is hereby quashed.

Sd/-

(Parth Prateem Sahu) Judge

.P.a.w.a.n.