KASHINATH KUTWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The following question arises in this application under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") :

(2.) With a view to appreciate the controversy involved, it will be necessary to make a brief reference to the facts of the case. A First Information Report (for short "FIR") was registered on 29th November 2015 at the instance of one Vilas Shamrao Bhosle being C.R. No.224 of 2015 with Wadgaon Nimbalkar Police Station, Taluka Baramati, District Pune for the offences punishable under Sections 306, 504, 506 read with Section 34 of the Indian Penal Code. The said FIR alleges that suicide committed by his wife Sangita in the night of 28th November, 2015. In the said FIR, Bhalchandra Sarjerao Mahadik (second respondent), Vaishali alias Shilpa Bhanudas Shinde and Sheetal Ganesh Kale have been named as the accused. On completion of the investigation, charge sheet was filed by the Police against the said three accused in connection with the said FIR on 14th March, 2016 for the offences punishable under Sections 306, 504, 506 read with Section 34 of the Indian Penal Code (IPC). The case was committed to the Court of Sessions and was numbered as Sessions Case No.47 of 2016. The second respondent filed an application for discharge on 6th May 2016 which was rejected by the Order dated 1st October 2016 by the learned Additional Sessions Judge, Baramati. Thereafter, on 26th October 2016, a complaint was filed by the second respondent against the present applicants and seven others alleging that they have committed murder of the said Sangita Vilas Bhosale. The offence punishable under Section 302 read with Section 34 of IPC was alleged. By an Order dated 15th November 2016, the Learned Judicial Magistrate First Class, Baramati exercised the power under Section 156(3) of Cr.P.C and ordered registration of FIR. Accordingly, FIR bearing CR No.375 of 2016 was registered Wadgaon Nimbalkar Police Station for the offence punishable under Section 302 read with Section 34 of IPC against the Present applicants and six other including the said Vilas, the husband of the deceased, who is the first informant in the earlier FIR being CR No. 224 of 2015. By the present application, a prayer is made for quashing FIR being C.R. No.375 of 2016 for the offence punishable under Section 302 read with Section 34 of IPC.

(3.) The learned counsel appearing for the applicants submitted that the act of filing a complaint seeking action under Sub-Section (3) of Section 156 of the Code of Criminal Procedure is itself an abuse of process of law. He pointed out that the second respondent filed the said complaint after his application for discharge in Sessions Case No.47 of 2016 was rejected. He submitted that the said application was rejected by the learned Sessions Judge by recording a finding that there is sufficient material on record to proceed against the second respondent. He submitted that the said order was not challenged by the second respondent. He pointed out that the fact that charge sheet was filed on the basis of C.R. No.224 of 2015 and the case was committed to the Court of Sessions is mentioned in the complaint filed by the second respondent. He submitted that the effect of the same has not been considered by the learned Magistrate while passing the impugned order dated 15th November, 2016. He submitted that the said order shows complete non application of mind and the registration of the second FIR in respect of the same offence is nothing but an abuse of process of law. The learned counsel appearing for the applicants relied upon a decision of the Apex Court in the case of Awadesh Kumar Jha and Anr. v. State of Bihar (2016) 3 SCC 8. He also relied upon another decision of the Apex Court in the case of T.T. Antony v. State of Kerala and Ors. (2001) 6 SCC 181. He also relied upon a decision of the Apex Court in the case of Anju Chaudhary v. State of Uttar Pradesh and Anr. (2013) 6 SCC 384.