Case Note & Summary
The High Court of Bombay at Aurangabad considered two criminal applications filed under Section 482 of the Code of Criminal Procedure, 1973 by applicants Sunil Kulkarni, Laxman Gorantyal, and Dattatraya Chilka seeking quashing of criminal process issued by the Chief Judicial Magistrate, Parbhani. Respondent No.2 Apparao Birajdar had lodged a private complaint alleging that the applicants and others had abducted him and his brother-in-law on the night of 1-2 December 1993, confined them in a hotel room, forced them to sign blank stamp papers, and coerced a cheque for Rs.2,50,000. An FIR had already been registered on 8 March 1993 leading to Crime No.171/93 under Sections 341, 323, 448, 506, 366 read with 34 IPC. The police investigated and submitted a 'B' Summary report on 28 April 1994 concluding the allegations were false. Meanwhile, Respondent No.2 filed a private complaint on 11 October 1994 before the CJM, who issued process on 12 October 1994. The 'B' Summary was forwarded to the CJM on 3 December 1994 and accepted on 8 February 1995, thereby creating contradictory orders on the same facts. The applicants argued that the complaint was belated and an abuse of process, filed as a counterblast to proceedings under Section 138 of the Negotiable Instruments Act. They relied on the 'B' Summary to show the allegations were baseless. The High Court found that the CJM issued process without directing investigation under Section 202 CrPC despite knowledge of the prior FIR, and that the subsequent acceptance of the 'B' Summary vitiated the prosecution. The Court held that the contradictory orders rendered the process unsustainable and quashed the same. Both applications were allowed.
Headnote
A) Criminal Procedure - Quashing of Process - Contradictory Orders - Code of Criminal Procedure, 1973, Section 482 - Where same court issues process on a private complaint and later accepts a 'B' Summary report on the same facts, the contradiction renders the prosecution untenable and the process liable to be quashed. Held that the contradictory orders by the CJM amounted to an abuse of process, and the process was quashed. (Paras 8, 11)
B) Criminal Procedure - Enquiry Before Issue of Process - Duty of Magistrate When FIR Already Registered - Code of Criminal Procedure, 1973, Section 202 - Where a private complaint is filed and an FIR on the same facts has already been registered, the Magistrate should direct investigation or inquiry under Section 202 CrPC before issuing process. Held that the CJM erred by issuing process without considering the pending police investigation, and this failure contributed to the contradictory situation. (Para 8)
Issue of Consideration
Whether the criminal process issued on a private complaint ought to be quashed when the same court subsequently accepted a police B Summary report finding the allegations false.
Final Decision
The High Court quashed the process issued by the Chief Judicial Magistrate, Parbhani on 12.10.1994 against the applicants. The court held that the issuance of process on the private complaint and the subsequent acceptance of the 'B' Summary by the same court led to contradictory orders, rendering the prosecution unsustainable. The applications were allowed.
Law Points
- When a court issues process on a private complaint and later accepts a B Summary on the same facts
- the contradictory orders warrant quashing of process
- Magistrate must direct investigation under Section 202 CrPC if FIR already registered on same facts
Case Details
2006 LawText (BOM) (09) 8
Criminal Application No. 1715 of 1994 and Criminal Application No. 1720 of 1994
Shri S.A.Deshmukh, Shri A.H.Kasliwal, Shri P.M.Shinde, Shri S.S.Choudhary
Sunil S/o Bhaskarrao Kulkarni, Laxman S/o Kishanrao Gorantal, Dattatraya Hanumant Chilka
The State of Maharashtra, Apparao alias Wangambar S/o Dadarao Birajdar
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Nature of Litigation
Criminal application under Section 482 of Code of Criminal Procedure, 1973 for quashing of criminal process issued on a private complaint.
Remedy Sought
Applicants seek to quash the order of Chief Judicial Magistrate, Parbhani dated 12.10.1994 issuing process against them for offences under Indian Penal Code.
Filing Reason
Applicants contend that the complaint was filed belatedly and mala fide, as a counterblast to a case under Section 138 of Negotiable Instruments Act, and that the same court later accepted a 'B' Summary report from police finding the allegations false.
Previous Decisions
The Chief Judicial Magistrate initially issued process on the private complaint on 12.10.1994. Subsequently, on 8.2.1995, the same Magistrate accepted the 'B' Summary report submitted by the police concerning the same facts, which stated the allegations were false. Thus, two contradictory orders existed.
Issues
Whether the process issued by the Chief Judicial Magistrate should be quashed given that on the same set of facts, the same court later accepted a 'B' Summary report declaring the allegations to be false.
Whether the complaint was an abuse of process of law.
Submissions/Arguments
Applicants argued that the complaint was belated; the complainant continued in service for 3.5 months after incident; no enmity; misappropriation by complainant led to settlement and cheque issuance; police 'B' Summary found allegations false; process issued before seeing police report; same court's contradictory orders make process untenable.
The respondents opposed the applications but their specific arguments are not detailed in the judgment.
Ratio Decidendi
When a criminal court issues process on a private complaint and later, on the same facts, accepts a police 'B' Summary report finding the allegations false, the resulting contradictory orders vitiate the prosecution. The issue of process in such circumstances is liable to be quashed to prevent abuse of process.
Judgment Excerpts
Thus, at present there are two contradictory orders of the same Court. (Para 8)
However, if the learned C.J.M. would have been careful, he could easily find from the contents of the complaint that alleged incident had taken place on lst and 2nd December 1993 about which F.I.R. was already lodged and Crime No.171/93 was registered by the Police. In such circumstances, instead of issuing process immediately he could have directed enquiry on investigation U/s 202 Cr.P.C. (Para 8)
Had he directed such investigation by Police, the Police report would immediately come before him and the statements recorded by the Police would be available to him for consideration as to whether there was or was not sufficient material to issue process. (Para 8)
Procedural History
Complainant lodged FIR on 8.3.1993 leading to Crime No.171/93 at Kotwali Police Station, Parbhani. Police investigated and submitted 'B' Summary on 28.4.1994, which was forwarded to CJM by Sub-Divisional Officer on 2.12.94. Meanwhile, complainant filed a private complaint on 11.10.1994. CJM issued process on 12.10.1994. 'B' Summary was received by CJM on 3.12.94 and accepted on 8.2.1995. Applicants filed Criminal Applications seeking quashing of process.
Acts & Sections
- Indian Penal Code, 1860: 341, 448, 365, 323, 506, 34
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 202
