Criminal Misc. No. 12882 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 12882 of 2008 Date of Decision: 03.12.2008 Gurjit Singh son of Tarlok Singh, resident of Village Dhoop Sari, Tehsil Batala, District Gurdaspur, Punjab. ... Petitioner Versus 1. State of Punjab. 2. Pawanpreet Kaur daughter of Gurmit Pal Singh, resident of Kapoori Gate, Majma Mohalla, Batala, District Gurdaspur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vipin Mahajan, Advocate, for the petitioner. Mr. S.S. Bhullar, DAG, Punjab, for respondent No. 1- State. Mr. K.S. Kahlon, Advocate, for respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., has been filed by the petitioner, for quashing FIR No. 133, dated 06.08.07, under Sections 420 and 494 IPC (P4/T), Police Station City Batala, District Batala. 2. The aforesaid FIR, was registered, on the statement of Pawanpreet Kaur daughter of Gurmit Pal Singh, on the allegations, that she was married to Gurjit Singh son of Tarlok Singh, resident of Village Criminal Misc. No. 12882 of 2008 2 Dhoop Sari, on 10.10.02, according to sikh religious rites and ceremonies. She stayed in the house of her in-laws, for about four years. After the marriage, one daughter, was born from this wedlock. It was stated that her husband Gurjit Singh, was earlier working, as MES Contractor, but subsequently, started the work of mobile phones. During this period, many telephone calls of the girls, used to be received, on the mobile phone of her husband. She enquired of her husband, regarding telephone calls, but he always used to put off the matter, and scolded her. She told her mother-in-law, regarding this, but she also used to put off the matter, on the one pretext or the other. About 1 ½ years earlier to the lodging of the FIR, the husband of the complainant left her, at her parent's house. During this period, he used to come to her parent's house, and asked her to get divorce. She, however, did not agree to this proposal of her husband. Then Gurjit Singh, filed a divorce petition, in the Court, which was dismissed. It was further stated that Gurjit Singh, her husband, being already married, to her, had contracted marriage with Manpreet Kaur daughter of Ajit Singh. By doing this, he cheated her. 3. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 4. The Counsel for the petitioner, submitted that the petitioner was married to Pawanpreet Kaur, respondent No. 2/complainant, according to the sikh religious rites and ceremonies, on 10.02.02. He also submitted that from this wedlock, a child was born, on 06.07.03. It was further submited by him that both the husband and wife could not pull on together, on account of temperamental differences, and the petitioner had Criminal Misc. No. 12882 of 2008 3 filed a divorce petition, under Section 13 of Hindu Marriage Act, which was dismissed by the Matrimonial Court. It was further submitted that the petitioner was falsely implicated, in case, bearing No. 26 dated 02.03.07, under Sections 363, 366 and 120-B IPC, which was registered, at the instance of one Ajit Singh son of Rachhpal Singh. In that FIR, it was alleged, against the petitioner that he kidnapped Manpreet Kaur daughter of Ajit Singh on 28.02.07. It was further submitted that during investigation, in the FIR No. 26, Ajit Singh, complainant and Pawanpreet Kaur, respondent No. 2/complainant, joined hands together. Pawanpreet Kaur, respondent No. 2/complainant, appeared before the investigation agency, in FIR No. 26 and made her statement, under Section 161 Cr.P.C. In that statement, she stated that the petitioner had already been married to her, but during the subsistence of that marriage, he contracted the second marriage, with one Manpreet Kaur. It was further submitted that, on the basis of statement of Pawanpreet Kaur, respondent No. 2/complainant, the investigating agency, added offence, punishable under Section 494 IPC, in FIR No. 26, dated 02.03.07. It was further submitted that after the completion of investigation, in case FIR No. 26, dated 02.03.07, challan under Sections 363, 366 and 120-B IPC, before the trial Court, was presented. In the list, attached with the challan, in FIR No. 26, dated 02.03.07, the name of respondent No. 2/complainant was also incorporated, as one of the witnesses. It was further submitted that when FIR No. 26, dated 02.03.07, under Sections 363, 366, 368 IPC, had already been registered, on the basis of the statement of Ajit Singh, in which, respondent No. 2/complainant also made a statement and the Criminal Misc. No. 12882 of 2008 4 offence under Section 494 IPC, was added, the FIR, bearing No. 133, dated 06.08.07, on the same allegations, on the basis of the statement of respondent No. 2/complainant, could not be registered, as that would amount to double jeopardy, as also abuse of the process of Court. It was further submitted that, even FIR No. 133, dated 06.08.07, could not be registered, in view of the bar, created by Section 198 Cr.P.C. 5. In reply, as also, at the time of arguments, the Counsel for the respondents, submitted that FIR No. 26, dated 02.03.07, under Sections 363, 366, 368, 494 and 120-B IPC, was registered against Gurjit Singh, petitioner. It was further submitted that, in both the cases, the dates of occurrence of the offences, were absolutely different. It was further submitted that FIR No. 133, dated 06.08.07, on the basis of the statement of Pawanpreet Kaur, respondent No. 2/complainant, was not barred, nor would it amount to subjecting the petitioner to double jeopardy. 6. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, Criminal Misc. No. 12882 of 2008 5 to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court, in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or 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 a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. Criminal Misc. No. 12882 of 2008 6 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence, and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. Criminal Misc. No. 12882 of 2008 7 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. Now adverting to the facts of the instant case, let us see, as to whether, the second FIR, bearing No. 133, dated 06.08.07, under Sections 420 and 494 IPC (P4/T), registered at Police Station City Batala, Police District, Batala, is liable to be quashed, or not. No doubt, FIR No. 26, dated 02.03.07, under Sections 363, 366, 368, 494 and 120-B IPC, was already registered, against the petitioner almost, on the same allegations. It emerges from the record that the petitioner was married to Pawanpreet Kaur, respondent No. 2/complainant, on 09.10.02, and from this wedlock, a child was born. It further emerges from the record that the petitioner allegedly contracted second marriage, with one Manpreet Kaur, during the subsistence of his first marriage with Pawanpreet Kaur, respondent No. 2/complainant. When the father of Manpreet Kaur, came to know of Criminal Misc. No. 12882 of 2008 8 this, he lodged FIR No. 26, dated 02.03.07, under Sections 363, 366 and 368 IPC. During the investigation of that FIR, Pawanpreet Kaur, respondent No. 2/complainant, however, made a statement, under Section 161 Cr.P.C., to the effect, that the petitioner contracted second marriage, with Manpreet Kaur, during the subsistence of his first marriage, with her, and as such, the investigating agency added the offence, punishable under Section 494 IPC, in that very FIR. The challan, in that FIR, has already been presented, in the Court of law. At the most, the petitioner could be allegedly prosecuted for the offence, punishable under Section 494 IPC, for having allegedly contracted second marriage, during the subsistence of first marriage with Pawanpreet Kaur, on her complaint. When she made a statement, during the investigation of the case FIR No. 26, dated 02.03.07 the offence, under Section 494 IPC, was added. The grievance of respondent No. 2/complainant, was redressed, at that stage. Since the challan has already been presented, in FIR No. 26, dated 02.03.07, if the Court comes to the conclusion, that any other offence was also made out, from the allegations, contained in the FIR, and the statements of the witnesses, recorded under Section 161 Cr.P.C., the charge can be framed therein also, as there could not be said to be any legal bar, in the way of the Court, in adopting such a procedure, the second FIR, bearing No. 133, dated 06.08.07, under Sections 420 and 494 IPC, almost, on the same allegations, may be at the instance of another complainant, would certainly be an abuse of the process of Court, and subject the petitioner to double jeopardy for facing the trial, in respect of the same offences twice. In T.T. Antony Vs. State of Kerala & Others , Criminal Misc. No. 12882 of 2008 9 (2001) 6 Supreme Court Cases 181, the principle of law, laid down, was to the effect that there can be no second FIR and consequently there can be no fresh investigation, on receipt of every subsequent information, in respect of the same cognizable offence, or the same occurrence, or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence, or an incident, giving rise to a cognizable offence, or offences, and on entering the FIR, in the Station house diary, the officer-in-charge of a Police Station, has to investigate nor merely the cognizable offence, reported in the FIR, but also other connected offences found to have been committed, in the course of the same transaction, or the same occurrence. If the gravamen of the charges, in the two FIRs, the first and the second, is in substance, and truth, the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr.P.C. will be irregular and the Court cannot take cognizance of the same. The principle of law, laid down, in the aforesaid authority, is fully applicable, to the facts of the instant case. As stated above, the allegations, in FIR No. 26, dated 02.03.07, and the subsequent FIR No. 133, dated 06.08.07, are almost the same. Neither the second FIR No. 133, dated 06.08.07, under Sections 420 and 494 IPC, could be registered, nor fresh investigation therein, could be conducted, by the investigating agency, in the face of FIR No. 26, dated 02.03.07, under Sections 363, 366, 368 and 120-B IPC, in which, offence under Section 494 IPC, was added later on, on the statement of Pawanpreet Kaur, respondent No. 2/complainant, during the course of investigation. The case of the petitioner, thus, falls within one Criminal Misc. No. 12882 of 2008 10 of the categories, enumerated in Bhajan Lal's case (supra). FIR No. 133, dated 06.08.07, under Sections 420 and 494 IPC (P4/T), registered at Police Station City Batala, Police District Batala, being clear abuse of the process of Court, in view of the circumstances explained above, is liable to be quashed. 8. For the reasons recorded above, Criminal Misc. No. 12882 of 2008, is accepted. FIR No. 133, dated 06.08.07, under Sections 420 and 494 IPC (P4/T), registered at Police Station Batala, is quashed, qua the petitioner. It is however, made clear, that, if, ultimately, in case, FIR No. 26, dated 02.03.07, under Sections 363, 366, 368 and 494 IPC, already registered, against the petitioner, and, in which, challan has already been presented, the concerned Court, comes to the conclusion, that respondent No. 2/complainant had separate cause of action, to proceed against the petitioner, for, whatever the offences may be, then, it shall be at liberty, to proceed, according to law, nothwithstanding the factum that FIR No. 133, dated 06.08.07, under Section 420 and 494 IPC, has been quashed qua the petitioner. 03.12.2008 (SHAM SUNDER) Amodh JUDGE