Bipin Chander Negi, J
1. These three petitions have been taken up together as the relief being claimed in these petitions is the same. The relief being sought in one of these petitions is as follows:-
“It is, therefore, respectfully prayed that the present petition may kindly be allowed and the Criminal Complaint No.8/2016 dated 16.01.2016 (Annexure P-3) as well as summoning order dated 10.12.2018 (Annexure P-4) passed by the Court of Ld. Additional Chief Judicial Magistrate, Court No.1, Amb along with all subsequent proceedings arising out of the same may kindly be quashed qua the petitioner.”
2. Heard learned counsel for the parties and perused the pleadings.
3. The incident in the case at hand is dated 17.11.2015. However, FIR in the case at hand was registered on 23.12.2015. From perusal of the FIR, it is evident that the complainant had in the very first instance approached the concerned Police Officials in the concerned Police Station, however, no FIR was registered. Thereafter, the complainant was forced to approach the concerned Superintendent of Police, Una. It is at the behest of Superintendent of Police, Una that the FIR in the case at hand was registered under Section 304-A of the Indian Penal Code. The same was registered against three persons, namely Ashok Kumar, son of Shri Bansi Ram, Ashok Kumar, son of late Shri Paras Ram and Kamal Dev.
4. Challan on the basis of the FIR was filed before the Court of competent jurisdiction on 14.03.2017, i.e., before learned Chief Judicial Magistrate, Amb, District Una. Charges in the case at hand were framed on 07.01.2022.
5. With respect to the incident dated 17.11.2015, the complainant had filed a complaint before the Additional Chief Judicial Magistrate, Amb, District Una on 16.01.2016. In the complaint itself, specifically in Paragraph-12 thereof, the complainant has categorically stated that she had visited Police Station, Amb along with her sons several times to get the FIR registered, but to no avail. According to the complainant, she had been threatened with dire consequences. In the aforesaid facts and attending circumstances of the case, the complainant was forced to file a written complaint before the concerned Superintendent of Police, Una on 14.12.2015, on whose insistence,FIR was registered under Section 304-A of the Indian Penal Code. However, according to the complainant, it is a case punishable under Sections 304/326/120-B of the Indian Penal Code. It is in such circumstances that the complaint had been filed on 16.01.2016 before the learned Additional Chief Judicial Magistrate, Amb, District Una. In the complaint, process was issued on 16.12.2018.
6. Against the issuance of process, the present petitioners have approached this Court. The Court, vide order dated 03.05.2019 (passed in Cr.MMO No.235 of 2019), had stayed the further proceedings pending before the learned Additional Chief Judicial Magistrate, Court No.1, Amb in Complaint No.08/2016.
7. It is the case of the petitioners that on the allegations, on the basis of which, FIR No.0210 dated 23.12.2015 has been got registered at Police Station, Amb, the private respondent has filed a complaint bearing No.08/2016 pending before the learned Additional Chief Judicial Magistrate, Court No.1, Amb. According to the petitioners, the complaint bearing No.08/2016 with the same allegations and averments as made in the FIR would not be maintainable, therefore, complaint bearing No.08/2016 deserves to be quashed and set aside along with the summoning order dated 10.12.2018.
8. 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 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.”
9. 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 stayed by him, in accordance with the provisions of Cr.P.C.
10. Thus, merely because on the same set of facts with the same allegations and averments earlier the FIR is filed, there is no bar to lodge the complaint with the Judicial Magistrate with the same allegations and averments.
11. However, at the same time, if it is found that the subsequent complaint 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 FIR will proceed further in accordance with the provisions of the Cr.P.C.
12. In the case at hand, the subsequent filing of the complaint is not an abuse of process as in the complaint, the private respondent has tried to highlight the fact that the case is triable for offences under Sections 304/326/120-B of the Indian Penal Code and not under Section 304-A of the Indian Penal Code, for which the FIR in the case at hand has been registered.
13. In this respect, reliance can be made to the decision of the Hon’ble Apex Court in Criminal Appeal No.142 of 2021, titled Kapil Aggarwal and others vs. Sanjay Sharma and others reported as 2021 (5) SCC 524.
14. In view of the aforesaid, learned Additional Chief Judicial Magistrate, Amb is directed to try complaint No.08/2016 and FIR No.0210 dated 23.12.2015 registered at Police Station, Amb together, as if both the cases were instituted on Police report.
15. The parties are directed to appear before the trial Court on 15.06.2024.
16. In view of the above terms, present petitions stand disposed of, so also, the pending miscellaneous application(s), if any.
