Kapil Agarwal and others v. Sanjay Sharma and others1)
In this case the Hon'ble Supreme Court held : Writ jurisdiction under article 226 can be invoked to quash fir if it is found to be abuse of process of law.
The Hon'ble Supreme Court observed that a High Court, invoking its powers under Article 226 of the Constitution of India, can quash an FIR if it is same found to be an abuse of process of law.
In this case, a writ petition preferred by the accused for quashing the first information report registered under under Sections 420/406 of the Indian Penal Code against them was dismissed by the Allahabad High Court. The accused's contention was that the FIR against him is a counterblast to the cheque bounce complaint filed against the complainant.
While allowing the appeal, the bench comprising Justices DY Chandrachud and MR Shah observed that the inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.
“If the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise o exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed. As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat2), Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court High Court, when it exercises the powers under Article 226 of the Constitution.”, the bench said.
Taking note of the facts of the case, bench found that the subsequent FIR filed by the original complainant can be said to be an abuse of process of law and the same to be bringing pressure on the accused. “When the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are 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 bench observed while allowing the appeal.
Yet another contention was that since the complainant has filed an application under Section 156(3) Cr.P.C., which is pending before the Magistrate, the impugned FIR with the same allegations and averments would not be maintainable. To reject this contention, the bench noted that the Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR.
Thus, as per Section 210 Cr.P.C., 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 Court added.