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Quashing of FIR during the pendency of Criminal Complaint in respect of same offence
05 Jun 2021 01:25 pm
1st March 2021
Justice M. R. Shah
(Sections 156(3), 210CRPC & Sections 406,420 of Indian Penal Code, Section 138 of NI Act)
On behalf of the appellants that as on the same allegations, the private respondent-complainant has filed an application under Section 156(3) CRPC, 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 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 Magistrate in a complaint case and an investigation by the police pursuant to the FIR. At this stage, Section 210 CRPC is required to be referred here. 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. 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 CRPC.
Earlier, a criminal complaint was filed by the accused under section 138 of NI Act against complainant. After the lapse of three months, an application under section 156 (3) of crpc had been filed by the complainant for the lodging of an FIR against accused appellants. But, the court declined to order under section 156 (3) for registration of FIR and decided to inquire the matter same as complaint case. Later on, after two years impugned FIR has been lodged by the complainant against accused appellants with similar contents and allegations same as earlier one. It appears that the complainant is not proceeding further with his application under section 156(3) of crpc which is pending before the Magistrate since last five years. In the FIR, neither there is any reference to the application to harass the appellants. 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 to harass the appellants.
Kajal Agarwal and Others vs. Sanjay Sharma and Others
