Rajesh Kumar Gupta, aged about 34 years, son of Vinod Sao, resident of Village v. 1. The State of Jharkhand 2. Deepa Rani, daughter of Naragmal Sao, resident of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2117 of 2021 Rajesh Kumar Gupta, aged about 34 years, son of Vinod Sao, resident of Village- Rud, P.O. & P.S.-Ichak, Dist.-Hazaribag (Jharkhand) .... Petitioner Versus 1. The State of Jharkhand 2. Deepa Rani, daughter of Naragmal Sao, resident of Village- Rajrappa Project, P.O. & P.S.-Rajrappa, Dist.-Ramgarh …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For O.P. No.2 : Mr. Nilesh Kumar, Advocate : Ms. Sonal Sodhani, Advocate : Mr. P.D. Agrawal, Spl. P.P. : Mr. Avilash Kumar, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 15.01.2021 by which cognizance has been taken against the petitioner for the offences punishable under Sections 376, 377, 323, 504 and 506 of the Indian Penal Code on the ground that the FIR of Ichak P.S. Case No. 311 of 2019 is the second FIR in respect of the same occurrence in respect of which Hazaribagh (Mahila) P.S. Case No. 04 of 2019 was instituted. Cr.M.P. No.2117 of 2021 1 3. The allegation against the petitioner is that the petitioner being the husband of the elder sister of the informant established sexual relationship with the informant on the promise of marriage and was keeping her in a separate house but used to assault her on the informant telling the petitioner to marry her and caused her miscarriage without her consent. Admittedly, for the selfsame allegation, the informant lodged Hazaribagh (Mahila) P.S. Case No. 04 of 2019 and during the trial because of compromise between the parties, the informant became hostile while being examined as a witness during the trial and did not support the case of the prosecution and deposed in court that no occurrence as alleged has taken place and neither any sexual exploitation of the informant has taken place nor any miscarriage was made hence, the petitioner was acquitted in Sessions Trial No. 183 of 2019 vide judgment dated 03.05.2019 and for the selfsame allegation, again this FIR has been registered but subsequently, during the investigation of the trial without mentioning any date, additional allegation of unnatural offences having been committed by the petitioner has been made and consequent upon that, charge sheet has been submitted against the petitioner for having committed the additional offence punishable under Section 377 of Indian Penal Code; besides the offences in respect of which the earlier case was registered and trial took place. 4. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Anand Kumar Mohatta & Anr. vs. State (NCT of Delhi), Cr.M.P. No.2117 of 2021 2 Department of Home & Anr. reported in (2019) 1 SCC 706, paragraph no.16 of which reads as under:- “16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.”(Emphasis supplied ) It is submitted by the learned counsel for the petitioner that this is the second FIR in respect of which Hazaribagh (Mahila) P.S. Case No. 04 of 2019 was registered long before institution of this case and in that FIR there is no allegation of any unnatural offence having been committed by the petitioner. 5. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Prem Chand Singh vs. State of Uttar Pradesh & Anr. reported in (2020) 3 SCC 54, paragraph nos.11 and 13 of which reads as under:- “11. It is, therefore, apparent that the subject-matter of both the FIRs is the same general power of attorney dated 2-5- 1985 and the sales made by the appellant in pursuance of the same. If the substratum of the two FIRs are common, the mere addition of Sections 467, 468 and 471 in the subsequent FIR cannot be considered as different ingredients to justify the latter FIR as being based on different materials, allegations and grounds. 13. In view of the conclusion that the substratum of the two FIRs are the same and that the appellant has already stood acquitted on 7-8-1998 of the charge with regard to forging any general power of attorney of the respondent, we are of Cr.M.P. No.2117 of 2021 3 the considered opinion that the subsequent prosecution of the appellant in FIR No. 114 of 2008 dated 9-10-2008 is completely unsustainable. In the result, the FIR dated 9-10- 2008, the orders dated 18-12-2015, 31-5-2016 and the impugned order dated 1-3-2017 [Prem Chand Singh v. State of U.P., 2017 SCC OnLine All 1264] are set aside. The appeal is allowed.” (Emphasis supplied ) It is submitted by the learned counsel for the petitioner that as admittedly, the substratum of two FIRs is same and the petitioner has already stood acquitted on 03.05.2019 of the charge with regard to the rape and abortion, the subsequent prosecution of the petitioner for this FIR is completely unsustainable and as the FIR is unsustainable in view of the principle of law settled in the case of Anand Kumar Mohatta & Anr. vs. State (NCT of Delhi), Department of Home & Anr. (supra), the FIR stands aggravated by the FIR taking a form of the charge sheet after investigation hence, the same and the consequential orders be quashed as well. 6. It is next submitted by the learned counsel for the petitioner that the judgment of acquittal of the petitioner in Sessions Trial No. 183 of 2019 has reached finality having not been challenged by anybody. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 7. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the entire criminal proceeding including the order dated 15.01.2021 in connection with Ichak P.S. Case No. 311 of 2019 and submits that in the statement of the victim subsequent to the lodging of the FIR recorded under Section 164 Cr.P.C., she has disclosed about commission of unnatural offence, causing simple hurt and Cr.M.P. No.2117 of 2021 4 being abused albeit without mentioning any date on which such occurrence took place. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Krishna Lal Chawla & others v. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435 paragraph-10 of which reads as under:- “10. Article 21 of the Constitution guarantees that the right to life and liberty shall not be taken away except by due process of law. Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such, he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case. As this Court has held in Amitbhai Anilchandra Shah [Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309] , such an absurd and mischievous interpretation of the provisions of the CrPC will not stand the test of constitutional scrutiny, and therefore cannot be adopted by us.” (Emphasis supplied ) that permitting multiple complaints by the same party in respect of the same incident, will lead to the accused being entangled in numerous criminal proceedings which is not the mandate of law. 9. Now coming to the facts of the case, admittedly, this FIR is the second of the two FIRs and the substratum of the two FIRs is the same. In view of the principle of law settled in the case of Prem Chand Singh vs. State of Uttar Pradesh & Anr. (supra), the mere addition of certain offences during the investigation of the subsequent FIR cannot be considered as different ingredients to justify the later FIR as being based on different material, allegation Cr.M.P. No.2117 of 2021 5 and grounds and in view of settled principle of law in the case of Anand Kumar Mohatta & Anr. vs. State (NCT of Delhi), Department of Home & Anr. (supra), the submission of charge sheet and taking cognizance by the learned Magistrate on the basis of the charge sheet, the FIR stands aggravated. So, once the second FIR is not sustainable in law, the criminal proceeding based upon the same is also not sustainable in law. 10.
Decision
In view of the above facts, this Court is of the considered view that continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 15.01.2021 passed in connection with Ichak P.S. Case No. 311 of 2019 be quashed and set aside. 11. Accordingly, the entire criminal proceeding including the order dated 15.01.2021 passed in connection with Ichak P.S. Case No. 311 of 2019 is quashed and set aside. 12. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 17th May, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2117 of 2021 6