Excelsior Correspondent
Srinagar, July 16: Observing that the registration of FIR by the Station House Officer was an act of grave impropriety and impermissible in law when the complaint for the same allegation was already pending before the Magistrate, the High Court quashed the said FIR.
Justice Sanjeev Kumar while exercising inherent powers vested under Code of Criminal Procedure quashed the impugned FIR registered in Police Station Magam. The registration of the impugned FIR, court added on the basis of allegations, which were part of the complaint taken cognizance of by the Trial Magistrate, which at the time of registration of impugned FIR, was pending, was legally impermissible and an act of grave impropriety by the police.
“Subsequent withdrawal of the complaint, if any, made by complainant is of no consequence and would not lend any legitimacy to the illegal registration of the impugned FIR”, Justice Kumar clarified. Court said the complainant was not entitled to launch two proceedings simultaneously, one by way of a complaint before the Trial Magistrate and the other by lodging an FIR with the Police Station, Magam on the basis of the same allegations.
As is evident from the record the Trial Magistrate had not only entertained the complaint but had also recorded the preliminary statement of the complainant and his witness. The Trial Magistrate, however, decided to defer issuance of process and get the truth and falsehood of the allegations made in the complaint ascertained through an inquiry to be conducted by the SDPO, Magam in terms of Section 202 Cr.P.C.
While the matter was before the SDPO, Magam for conducting investigation in the matter the complainant launched parallel proceedings and filed a written complaint on the same allegations before the Incharge Police Station, Magam seeking registration of FIR against the petitioners.
Interestingly, while the Trial Magistrate was seized of the matter and awaiting inquiry report in terms of Section 202 Cr.P.C. from the SDPO, Magam, Police Station Magam registered FIR No.06/2018 under Sections 406, 420, 120-B and 506 RPC and set the investigation in motion.
Court said that it leaves one without any doubt that the FIR was lodged against the petitioners maliciously and looking at the allegations made in the complaint as well as FIR, offences alleged in the complaint are not strictly made out.
Court said, the disputes, which are purely civil in nature, cannot be resolved by abusing the process of Criminal Courts. The offence of criminal breach of trust punishable under Section 406 RPC or offence of cheating punishable under Section 420 are the offences, which are mutually exclusive. If it is a case of breach of trust under Section 406 RPC, it cannot also constitute offence under Section 420 RPC and it is true vice versa.
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