Shobha Rani vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—The present petition has been filed u/s 482 of the code of criminal procedure praying for quashing of calendra dated 7/11/07 u/s 182 of IPC in FIR No. 8 dated 15/01/07 registered u/s 376(2)(g) IPC at P.S. Farakpur, District Yamunanagar.

The brief facts necessary for adjudication of the present case are that the present petitioner had lodged an FIR against her brother-inlaw Dhanjit u/s 376(2)(g) IPC. It is the grievance of the petitioner that the FIR was not duly investigated into and all out efforts were made to help the accused. This prompted the petitioner to institute a private complaint on the same cause of action for which the FIR No. 8 had been registered. This private complaint was instituted on 4.5.2007. During the pendency of the complaint the investigating agency opted to file the calendra u/s 182 of the Indian Penal Code on the ground that there was no truth in the statement made by the petitioner and the false allegations were leveled due to a pending property dispute. The present petition has been filed praying for the quashing of the calendra on the ground that the same could not have been instituted during the pendency of the private complaint and the same will tantamount to pre-judging the complaint filed by the petitioner.

I have heard learned Counsel for the parties and perused the record. The sole issue which arises for consideration in the present case is whether a calendra can be presented u/s 182 of IPC against the complainant, when the criminal complaint is pending and a court of law which is seized of the matter is yet to express its final opinion on the matter.

This issue has arisen before this Court on various occasions. One such case where this issue was examined is Banta Singh v. State of Haryana 1995 (3) R.C.R. (Criminal) 133. In that case also the allegations leveled by the complainant were found to be false by the investigating agency which had presented calendra u/s 182 of IPC. Subsequently, the complainant instituted a private complaint and sought quashing of the calendra on the ground that the same cannot be proceeded with during the pendency of the complaint. This Court in Banta Singh''s case (supra), following the ratio of law laid down in State of Punjab v. Brij Lal Palta AIR 1989 SC 355, held as under:

In State of Punjab v. Brij Lal Palta AIR 1989 SC 355, a matter very much similar to the one in hand, was considered and it was held that once a complaint filed by the informant which is based on the same facts and allegations on which the first information was registered, is being proceeded with, it is not open to a Magistrate to take cognizance of any offence alleged to have been committed u/s 211, Indian Penal Code. It was further held that although Section 182, Indian Penal Code, is distinct from the offence u/s 211, the latter is a more serious offence and may include the offence under the former section. It is apparent that if the case u/s 182, Indian Penal Code, is allowed to proceed, a decision in the said case would tantamount to pre-judging the complaint filed by the petitioner. The prosecution of the petitioner u/s 182, Indian Penal Code, during the pendency of his complaint, is evidently an abuse of the process of the Court, and it would be but proper to secure the ends of justice, to quash these proceedings. It is ordered accordingly.

This issue was again considered by this Court in the case of Ramesh Chand v. State of Haryana 2006 (4) R.C.R. (Criminal) 718. In that case also the quashing of calendra u/s 182 of IPC was sought on the ground that during the pendency of the complaint, these proceedings could not have been instituted. This Court allowing the petition observed as under:

In view of the admitted facts that in the private complaint filed by the petitioner, the accused have been summoned, though they were found innocent by the police in the FIR and keeping in view the aforesaid settled proposition of law, at this stage it cannot be said that the allegations levelled by the petitioner in the FIR are false. Therefore, in my opinion, the proceedings initiated by the police against the petitioner u/s 182 IPC are liable to be quashed.

Even in the case of Tarlochan Singh v. State of Punjab 2007 (3) R.C.R. (Criminal) 791 the proceedings u/s 182 of the Indian Penal Code were quashed as the criminal complaint on the same cause of action was pending. This Court observed as under:

There appears to be force and substance in the contention raised on behalf of the petitioner. Though, the police had investigated the FIR registered on the basis of a complaint submitted by the petitioner and found those allegations to be false, yet the petitioner has thereafter filed a fresh complaint Annexure P-3 and the said complaint is still pending and fixed for recording of preliminary evidence.

After adverting to the various case law on the point it was held that:

It is, thus, clear that if the case u/s 182 IPC is allowed to proceed, a decision in the said case would tantamount to pre-judging the complaint filed by the petitioner. The prosecution of the petitioner u/s 182 IPC during the pendency of his complaint on the same facts and allegations as mentioned in the FIR, would be an abuse of the process of the Court.

The aforesaid proposition of law was followed more recently in the case of Babita v. State of Punjab 2008 (4) R.C.R. (Criminal) 516 wherein it was held that:

Keeping in view the facts of the present case, where the final opinion by the Court is yet to be expressed as regard the falsity of the complaint made by the petitioner, permitting the respondents to proceed with the proceedings u/s 182 IPC would amount to pre-judging the complaint filed by the petitioner. The same is pre-mature and would amount to abuse of process of law. It would be proper, to secure the ends of justice, to quash the proceedings against the petitioner.

From the perusal of the aforesaid judgments, the principle of which emerges is that the proceedings u/s 182 of IPC cannot be permitted to continue when a private complaint on the same cause of action is pending before a court of law. When the truthfulness and veracity of the allegations have not been determined by a court, prosecuting the complaint u/s 182 will tantamount to prejudging the whole issue which would clearly be an abuse of process of law. Since this view has been consistently followed by this Court and the counsel for the respondent has not been able to cite any case law to the contrary, I see no reason for deviating from the view taken by this Court on various occasions.

Resultantly, the present petition is allowed and calendra dated 7.11.2007 u/s 182 of IPC is quashed along with all subsequent proceedings emanating therefrom.