Listen to this articleKAPIL AGARWAL
VERSUS
SANJAY SHARMA AND OTHERS
CRIMINAL APPEAL NO. 142 OF 2021, Decided on March 01,2021.
BENCH- Dhananjaya Y. Chandrachud, M.R.
Shah, JJ.
FACTS
In the present case ‘A’ is a
licensed franchisee engaged in manufacture and sale of carbonated sweetened
water, juice etc. Thereafter ‘A’ appointed ‘B’ as a distributor of particular
area which was subsequently terminated due to non-payment of dues by B. B
issued a cheque which was dishonoured on grounds of insufficient fund. A filed
a complaint under Section 138 of the Negotiable Instrument Act. The said
complaint is presently pending for disposal. Thereafter B filed another case
for misappropriation under Section 156(3) of the Cr.P.C against A which is
pending before the learned Magistrate. Later, after a period of approximately
two years, B lodged the impugned FIR against the appellants under Sections
406/420 IPC. The allegations in the said FIR are same/similar to the
allegations levelled in the application under Section 156(3) Cr.P.C., which is
pending consideration before the learned Magistrate.
ISSUE
Whether a separate FIR is allowed on allegation same/similar
to the allegations levelled in the application under Section 156(3) Cr.P.C.,
which is pending before the Magistrate?
HELD
The Supreme Court without expressing any opinion on the
merit of the case as whether the offence is made out against the appellants as
alleged in Section 156(3) Cr.P.C. application held that the impugned FIR is
nothing but an abuse of process of law and to harass the appellants-accused and
the Court was of the opinion that the High Court ought to have exercised the
powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to
have quashed the impugned FIR to secure the ends of justice.
The Supreme Court answered the question in negative and held
that the separate FIR with the same allegations and averment which is pending
before the learned Magistrate would not be abuse of process of law. The Hon’ble
Supreme Court referred to Section 210 of Cr.P.C which states that 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. 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.
The Hon’ble Supreme Court
further held that if the subsequent FIR is an abuse of the process of law and
is lodged only to harass the accused the same could be quashed using Article
226 of Constitution or Section 482 of Cr.P.C.
Using the abovementioned provisions court culled that 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. Therefore impugned FIR registered
subsequently will be set aside and the present appeal is allowed.