Rina Banerjee @ Reena Banerjee, aged about 71 years, w/o Kartik Banerjee @ Kartick v. 1. The State of Jharkhand 2. Moumita Kar, w/o Bikramjit Banerjee, D/o Bablu Kar
Case Details
With 1 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2923 of 2022 Rina Banerjee @ Reena Banerjee, aged about 71 years, w/o Kartik Banerjee @ Kartick Banerjee @ Kartick Chandra Banerjee,R/o 34/13A, Porui Kancha Road, Sarsuna, P.O.- Sarsuna, P.S.- Parnashree, Dist.- South 24 Parganas, Kolkata-700061, West Bengal .... Petitioner Versus 1. The State of Jharkhand 2. Moumita Kar, w/o Bikramjit Banerjee, D/o Bablu Kar, aged about 29 years, R/o Flat No.808, 8th Floor, Silver Tower, Ganesh Residency, Near Loyola College, Prakashnagar, P.O.- Telco, P.S.- Birsanagar, Jamshedpur-831004, East Singhbhum …. Opp. Parties With Cr.M.P. No. 3527 of 2022 Bikramjit Banerjee, aged about 34 years, s/o Kartik Banerjee, Resided at H. No. 34/13A, Porul Kancha Road, Sarsuna, P.O.- Sarsuna, P.S.- Parnashree, Dist.- South 24 Parganas, West Bengal .... Petitioner Versus 1. The State of Jharkhand 2. Moumita Kar, D/o Bablu Kar, Resided at Flat No.808, 8th Floor, Silver Tower, Ganesh Residency, Near Loyola College, Telco, P.O.- Telco, P.S.- Birsanagar, East Singhbhum …. Opp. Parties P R E S E N T
Legal Reasoning
“12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 , State of SCC 692 Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) : 1988 SCC (Cri) 234] With 6 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 19] Ranjan and Zandu Prasad Verma v. State 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or inherently where the allegations are absurd and improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal With 7 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” and also taking note of the fact that mala fide intention of the respondent no.2 before the Supreme Court was culled out from the fact that at the time of filing complainant case dated 31.03.2013, the respondent no.2 did not disclose about the filing of two complaint cases at Delhi against the appellants, the Hon’ble Supreme Court of India quashed the F.I.R. No.168 dated 28.03.2013 and the proceeding in the file of CMM, Kolkata in pursuance of charge sheet dated 14.02.2017 against the appellants before the Supreme Court. 8. Learned counsel for the petitioners further relied upon the judgment of Hon’ble Supreme Court of India in the case of Babubhai vs. State of Gujarat & Ors. reported in (2010) 12 SCC 254, paragraph no.17 and 21 of which reads as under :- the earlier reconsidered “17. In Rameshchandra Nandlal Parikh v. State of Gujarat [(2006) 1 SCC 732 : (2006) 1 SCC (Cri) 481] this Court judgment including T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the first FIR, there is no prohibition in accepting the second FIR. 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 in the 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 With 8 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted.” and submits that the continuance of the criminal proceeding of the complaint case amounts to abuse of process of the court and as the criminal proceeding has been initiated with mala fide/malice for wreaking vengeance upon the petitioners by suppressing the material facts that for the same allegation, earlier Bahala Women P.S. Case No.02 of 2020 was instituted by the complainant- opposite party no.2, hence, the continuation of this criminal proceeding will amount to abuse of process of court. It is lastly submitted that thus, the prayer for quashing the entire criminal proceeding be allowed. 9. Learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding. Learned counsel for the opposite party no.2 relied upon the judgment of Hon’ble Supreme Court of India in the case of Kapil Agarwal & Ors. vs. Sanjay Sharma & Ors. reported in Criminal Appeal No.142 of 2021 dated 01.03.2021, paragraph nos.5 and 6 of which reads as under:- 5. We have heard the learned counsel for the respective parties at length. It is the case on behalf of the appellants that as on the same allegations, the private respondent-complainant has filed an application under Section 156(3) Cr.P.C., which is pending before the learned Magistrate, the impugned FIR with the same allegations and averments would not be maintainable, and therefore, the FIR lodged with the police station Loni Border, District Ghaziabad deserves to be quashed and set aside. The aforesaid cannot be accepted for the simple reason that Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the With 9 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 Magistrate in a complaint case and an investigation by the police pursuant to the FIR. At this stage, Section 210 Cr.P.C. is required to be referred to, which reads as under: “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” Thus, as per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was With 10 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 stayed by him, in accordance with the provisions of Cr.P.C. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments. 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 pressure upon such exercise of accused, 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 the 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 under Article 226 of the Constitution. (Emphasis supplied) inherent powers, in 10. It is next submitted that more detailed version of the occurrence which was made in the F.I.R. has been mentioned in the complaint. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that no occurrence of any date subsequent to the lodging of the F.I.R. on 02.03.2020 in connection with Bahala Women P.S. Case No.02 of With 11 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 2020 has been alleged in the complaint case or in the statement on solemn affirmation by the complainant. 12. After going through the contents of the F.I.R. as well as the complaint and the solemn affirmation, this Court has no hesitation in holding that the allegations made in the F.I.R. being Bahala Women P.S. Case No.02 of 2020 and the complaint are more or less the same. 13. It is a settled principle of law as has been observed by the Hon’ble Supreme Court of India in the case of Babubhai vs. State of Gujarat & Ors. (supra) that if it is found that subsequent F.I.R. is abuse of process of the law as or the same has been lodged only to harass the accused, the same can be quashed inter alia in exercise of the power under Section 482 Cr.P.C. 14. So far as the contention of the opposite party no.2 regarding the applicability under Section 210 Cr.P.C. the same envisages a situation when the complaint is pending during the pendency of the investigation of the police case but in this case, admittedly, the Complaint Case No.1030 of 2021 was instituted after submission of charge sheet in the said Bahala Women P.S. Case No.02 of 2020 and no fresh allegation of any date subsequent to the occurrence which has been mentioned in the said F.I.R. has been alleged in the complaint nor any additional person has been arrayed as accused in the complaint. 15. Under such circumstances, this Court is of the considered view that the continuance of the proceeding in Complaint Case No.1030 of 2020 will amount to abuse of process of law and the same has With 12 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 been lodged only to harass the petitioners of both the criminal miscellaneous petitions who are accused persons of those cases. 16. Therefore, the entire criminal proceeding in connection with Complaint Case No.1030 of 2021 including the order dated 14.06.2022 passed in the said complaint case taking cognizance for the offences is set aside and quashed. 17. In the result, both the criminal miscellaneous petitions are allowed. 18. In view of the disposal of both the criminal miscellaneous petitions, the interim order if any stands vacated. High Court of Jharkhand, Ranchi Dated the 22nd March, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner : Mr. Pratyush Shounikya, Advocate : Mr. Aayush Avant Srivastava, Advocate : Mr. Jitendra Shankar Singh, Advocate : Ms. Pinki Kumari, Advocate With 2 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 For the State For O.P. No.2 : Mr. P.K. Chatterjee, Spl. P.P. : Mr. Md. Azam, Advocate : Mr. Afaque Rashidi, Advocate : Mr. Ajmal Ashraf Khan, Advocate ….. By the Court:- 1. 2. Heard the parties. Both these criminal miscellaneous petitions have been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding in connection with Complaint Case No.1030 of 2021 pending in the court of Judicial Magistrate 1st Class, Jamshedpur and also to quash the order dated 14.06.2022 passed in the said complaint case by which the learned Magistrate has taken cognizance for the offences punishable under Sections 498A, 417, 419 and 323 of Indian Penal Code. 3. The facts of the case is that the complainant-opposite party no.2 is the wife of Bikramjit Banerjee who is the petitioner of Cr.M.P. No.3527 of 2022 and the petitioner of Cr.M.P. No.2923 of 2022 is the mother of petitioner of Cr.M.P. No.3527 of 2022. The complainant-opposite party no.2 of both the cases married the petitioner of Cr.M.P. No.3527 of 2022 legally on 26.10.2019 and there was a social marriage also on 22.01.2020. The undisputed fact remains that the complainant-opposite party no.2 lodged an F.I.R. with Bahala Women police station vide F.I.R. No. 02 of 2020 registered for the offences under Sections 498A, 406, 34 of Indian Penal Code on 02.03.2020 and after investigation of that case, the police submitted charge sheet inter alia against the petitioners on With 3 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 29.09.2020 for having committed the offences punishable under Sections 498A, 406 and 34 of Indian Penal Code and under Section 3 and 4 of Dowry Prohibition Act. 4. The allegations made in the said F.I.R. being Bahala Women P.S. Case No.02 of 2020 is that after marriage the complainant-opposite party no.2 found that her husband was having some physical problems. The complainant-opposite party no.2 became enraged. She took her husband to the doctor. They went to Vietnam for honeymoon but there was quarrel between the complainant- opposite party no.2 and her husband there also. Some abuses came out from the mouth of the complainant-opposite party no.2 which was recorded in the mobile phone of her husband and later on her husband drove out the complainant-opposite party no.2 and her mother from his house after pushing them away. It is also alleged in the said F.I.R. that the husband of the complainant- opposite party no.2 made false allegations about the character of the complainant-opposite party no.2. 5. In the statement on solemn affirmation in the complaint case also, similar allegations was made by the complainant-opposite party no.2 and an additional new allegation was made that the petitioner of Cr.M.P. No.2923 of 2022 demanded furniture of Godrej brand over phone after the marriage and the husband of the complainant-opposite party no.2 assaulted her during the period they went for honeymoon. 6. Learned counsel for the petitioners submits that the complaint case is the second prosecution of the petitioners for the selfsame 4 Cr.M.P. No.2923 of 2022 With Cr.M.P. No.3527 of 2022 occurrence, which is not permissible in law. In support of the contention, learned counsel for the petitioners relied upon the judgment of Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. vs. The State of West Bengal & Ors. in Criminal Appeal No.463 of 2022 dated 22.03.2022 wherein in the facts of that case, the respondent no.2 before the Hon’ble Supreme Court of India who filed a police complaint on 06.01.2012 before the Police Station at Rajendra Nagar, New Delhi and subsequently, on 06.06.2012 filed complaint being C.C. No.306/1/12 under Section 156 (3) Cr.P.C. before the Tiz Hazari Court, New Delhi for registration of the F.I.R. The Hon’ble Supreme Court of India considering the principle of law settled in the case of Union of India vs. Cipla Ltd. & Anr. reported in (2017) 5 SCC 262 wherein, the Hon’ble Supreme Court of India in paragraph no.10 has observed that forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.In Vijay Kumar Ghai & Ors. vs. The State of West Bengal & Ors. (Supra) the Hon’ble Supreme Court of India also relied upon the judgment of in the case of Krishna Lal Chawla & Ors. vs. State of U.P. & Anr. reported in (2021) 5 SCC 435, wherein the Hon’ble Supreme Court of India observed that multiple complaints by the same party against the same accused in respect of the same incident is impermissible. In the judgment of T.T. Antony vs. State of Kerala & Ors. reported in (2001) 6 SCC 181, it was held by the Hon’ble Supreme Court of India that there can be no second F.I.R. where the information With 5 Cr.M.P. No.2923 of 2022 Cr.M.P. No.3527 of 2022 concerns the same cognizable offence alleged in the first F.I.R. or the same occurrence or incident which give rise one or more cognizable offences. In the case of Vijay Kumar Ghai & Ors. vs. The State of West Bengal & Ors. (supra) the Hon’ble Supreme Court of India relied on its own judgment in the case of K. Jayaram & Ors. vs. Bangalore Development Authority & Ors. reported in 2021 SCC OnLine 1194 wherein, the Hon’ble Supreme Court of India observed as under in paragraph no.16:- “16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.” 7. The Hon’ble Supreme Court of India also relied upon its judgment in the case of Indian Oil Corpn. Vs. NEPC India Ltd. & Ors., paragraph no. 12 of which reads as under:- a mention few—Madhavrao