Guneet Singh Dhingra & Ors. v. State of NCT Delhi & Anr.

A. FIR 685/2021 being registered on a second complaint is an abuse of process of law. It is based on the same allegations, facts as well as the same causes of action, upon which complaint case no. 8314/2019 was registered.

No.2 had not made any allegations for commission of offences interalia punishable under section 406 IPC in her previous complaint under the provisions of DV Act.

Samta Naidu v. State of M.P. (2020) 5 SCC 378 wherein it was held as under: “16. As against the facts in Shivshankar [Shivshankar Singh v. State of Bihar, (2012) 1 SCC 130: (2012) 1 SCC (Cri) 513], the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Talukdar [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876: (1962) 1 Cri LJ 770: 1962 Supp (2) SCR 297] as explained inJatinder Singh [Jatinder Singh v. Ranjit Kaur, (2001) 2 SCC 570: 2001 SCC (Cri) 354] and Poonam Chand Jain [Poonam Chand Jain v. Fazru, (2010) 2 SCC 631: (2010) 2 SCC (Cri) 1085]. The High Court was thus not justified in holding the second complaint to be maintainable.

17. In the aforesaid premises, we allow these appeals, set aside the decision of the High Court and dismiss Complaint Case No. 9226 of 2014 as not being maintainable. The amount deposited by the appellants shall now be returned to them along with any interest accrued thereon.”

89 wherein the Apex Court held as under: “13. The dispute between the parties is essentially civil in nature. The will in question is a registered will. Whether it is surrounded by suspicious circumstances or not is a matter which may appropriately fall for determination in a testamentary proceeding. Prima facie, a civil court has found the said will to be genuine. A complaint petition filed by the third respondent has been rejected. A revision application filed thereagainst has also been dismissed. ……

18. The order of the learned ACJM in his order dated 2-4-2003 is not a cryptic one. Reasons have been assigned in support thereof. In a situation of this nature, in our opinion, a second complaint petition could not have been filed. Strong reliance has been placed by Mr Singh on a decision of this Court in Mahesh Chand v. B. Janardhan Reddy [(2003) 1 SCC 734: 2003 SCC (Cri) 425] wherein it was opined that the second complaint was not completely barred in law. This Court, however, in that decision itself held that the second complaint can lie only on fresh facts and/or if a special case is made out therefor, stating:

19. The second complaint petition filed by the third respondent does not disclose any such exceptional case. It reiterated the same allegations as were made in the first complaint petition. No fresh fact was brought to the notice of the court. The core contention raised in both the complaint petitions was alleged execution of a forged will by Tika Ram Tyagi.

20. For the reasons aforementioned, we are of the opinion that it was not a fit case where cognizance of the offence could have been taken or any summons could have been issued. The impugned judgment, thus, cannot be upheld. It is set aside accordingly. The appeal is, therefore, allowed.”

15. Mr. Wadhwa, learned counsel for the petitioner states that the present FIR is an abuse of the process of law. He states that the Respondent No.2 first made a complaint on 28.12.2016 before the Police. The said complaint after investigation was closed. Then another complaint under Section 200 CrPC was filed on 01.11.2019 which is registered as Case No. 8314/2019. Thereafter, another complaint dated 11.01.2021 was made before the DCP, SHO as well as the CAW Cell (resulting in registration of FIR 685/2021) which is identical to the complaint dated 01.11.2019.

16. He contends that since the FIR is an abuse of the process of law, notwithstanding section 210 of CrPC, the FIR needs to be quashed. In this regard, he places reliance on the judgment of Kapil Agarwal vs. Sanjay Sharma (2021) 5 SCC 524 which reads as under:

17. He has also relied on the judgment of Hon’ble Supreme Court in Vijay Kumar Ghai v. State of W.B. (2022) 7 SCC 124 wherein it was observed as under:

18. Learned counsel for the respondent No.1 submits that there is no statuary bar on registration of FIR when a complaint under section 200 CrPC is already pending.

19. It is submitted that the judgments relied upon by the Petitioners viz., Hira Lal (supra) and Samta Naidu (supra) is not applicable as in the aforementioned cases, the application filed under 156(3) of CrPC was rejected by the Court and thereafter another application was filed on the same facts, whereas in the present case, the complaint filed under section 200 CrPC was never rejected and the impugned FIR was registered during the pendency of the complaint under section 200 CrPC. Moreover, another fact is that the Complaint case filed under section 200 CrPC and the subsequent complaint filed by the Respondent No.2 which ultimately led to the registration of the FIR were not identical. Additionally, the nature of offence detailed in the complaints filed by the Respondent No.2 was continuing in nature.

20. It is also submitted that the complaint in the present case was filed first and as a counterblast, the Petitioner No.2 filed the eviction suit for evicting the Respondent No.2 and hence, the argument with regard to the impugned FIR being a counterblast as submitted by the Petitioner is not applicable to the facts and circumstances of the present case.

21. Respondent No. 2 has also filed a reply wherein while denying the averments of the petitioners on merits, she has stated that since all her dowry articles were with the petitioners, she had no choice but to file a complaint.

22. Respondent No. 2 has also filed a civil suit being CS DJ/21/2019 for return of her articles of jewellery which is pending in Tis Hazari Court.

23. Respondent No.2 has also stated that the Learned MM had not taken cognizance of her complaint and after registration of the FIR, she has already withdrawn her complaint case under section 200 CrPC.

24. Learned counsel for the Respondent No.2 also states that the Respondent No.2 was under continuous mental harassment, domestic violence regarding which Respondent No. 2 filed various complaints to the Police for registration of FIR and every Police complaint is distinctive and based upon separate cause of action. The offences committed by the petitioners were continuous in nature.

25. It is submitted that the petitioners are now misleading the Hon’ble Court in order to get the FIR quashed by stating that only 3 complaints were made by the Respondent No.2. However, true fact is that 8 complaints were made by the Respondent No.2 against the Petitioners as the Respondent NO. 2 was harassed on a daily basis.

ANALYSIS

26. I have heard learned counsel for the parties.

27. Section 210 CrPC reads as under:

28. Assuming the best case of the petitioners that the complaint as well as the FIR are based on identical facts and circumstances, even then as per Section 210 CrPC there is no legal bar to register a subsequent FIR on identical allegations and averments.

29. It is only in case the Court comes to a finding that the FIR is an abuse of the process of law or has been lodged to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution. Hence, the petitioners are required to show that the subsequent FIR is an abuse of process of law and has been lodged to harass the accused persons/petitioners.

30. The complaint being 8314/2019 dated 01.11.2019 under section 200 CrPC was predicated on the fact that the petitioners refused to return Respondent No.2’s articles of Stridhan/jewellery and had misappropriated the same. The complaint was filed under section 406 and 34 IPC alleging that the petitioners cheated the Respondent No.2 as they never intended to return the Stridhan/jewellery and articles of dowry to Respondent No.2 and have caused wrongful gain to themselves and wrongful loss to the Respondent No.2. The value of the misappropriated items was estimated to be Rs. 30-35 lakhs.

31. The subsequent complaint dated 11.01.2021 resulting in FIR 685/2021 is registered under sections 498-A/323/406/506/34 IPC and is predicated on the fact that the petitioners have misappropriated the Stridhan, dowry articles and jewellery of Respondent No.2. In addition, it is also stated that the petitioners were wrongfully evicting and dispossessing Respondent No.2 and her two minor daughters from the shared household at E-7, Second Floor, Front Side, Rajouri Garden, New Delhi. The FIR is also predicated on the assault that took place on 30.12.2020 when the petitioners threatened and intimidated the Respondent No.2 and her two minor daughters.

32. A perusal of the above shows that the complaint dated 01.11.2019 under 200 CrPC and the complaint dated 11.01.2021 resulting in FIR 685/2021 do have an overlap of misappropriation of Stridhan/jewellery and dowry articles of Respondent No.2 but they are not identical. FIR 685/2021, in addition, has separate incidents.

33. I am of the view that the FIR No. 685/2021 is not an abuse of the process of law. According to me, the said FIR is not a frivolous or vexatious grievance of the Respondent No.2. The said FIR records incidents of assault inflicted upon the Respondent No.2 post 2019 which are not mentioned in the complaint dated 01.11.2019. Moreover, the FIR is predicated on the continuous mistreatment, harassment, cruelty and attempts of forceful eviction from the shared household faced by the Respondent No.2 and her minor daughters at the hands of the petitioners.

34. Even otherwise section 210 CrPC permits filing of a complaint and FIR on the same cause of action and in such a scenario, the complaint case is liable to be stayed till finalization of the investigation. However, in the present case, the Respondent No.2 has on 24.05.2022 already withdrawn her complaint case dated 01.11.2019 under section 200 CrPC.

35. As regards the argument of the impugned FIR being barred by limitation is concerned, the nature of allegations described in the FIR filed by the Respondent No.2 are continuing in nature. Reliance is placed on Arun Vyas v. Anita Vyas (1999) 4 SCC 690 wherein the Hon’ble Supreme Court has observed as under:

36. In the present case, the Respondent No.2 has continuously been subjected to cruelty and harassment on account of non-return of Stridhan/jewellery belonging to Respondent No.2 at the hands of the petitioners. In addition, the Respondent No.2 was physically assaulted by the petitioners on 30.12.2020 which would have a new starting point of limitation. Hence, the impugned FIR is not barred under section 468 CrPC.

37. In view of the above, the present petition is dismissed along with all pending applications.