2012 (1) TMI 426 - HC - Indian Laws

Petition to Quash FIR Dismissed; Court Finds Abuse of Legal Process, Imposes Costs on Petitioner for Unmeritorious Claims.

The HC dismissed the petition seeking to quash FIR No. 14/2011 under Section 174-A IPC, filed at PS Farsh Bazar. The Court found the petitioner's ... Registration of FIR and cognizance for offence under Section 174-A IPC - Mandatory affixation and public reading under Section 82(2)(i) Cr.P.C. - Non-mandatory nature of newspaper publication under Section 82(2)(ii) Cr.P.C. - Abuse of process and repeated petitions after withdrawalRegistration of FIR and cognizance for offence under Section 174-A IPC - Police competent to register FIR under Section 174-A IPC and Magistrate may take cognizance on police charge-sheet despite Section 195 Cr.P.C. not being amended to include Section 174-A. - HELD THAT: - The Court observed that Section 174-A IPC was introduced after the relevant provisions of Section 195 Cr.P.C. were framed and that Section 195 has not been amended to include Section 174-A. The Legislature's choice resulted in making the offence under Section 174-A cognizable. Consequently, a police officer is competent to register an FIR on a complaint alleging an offence under Section 174-A and, following investigation, to place a charge-sheet before the Magistrate who can then take cognizance. The petitioner's submission that cognizance in such cases is maintainable only on a complaint under Section 195 Cr.P.C. was rejected as lacking merit. [Paras 9]The challenge to the FIR on the ground that cognizance could be taken only on a complaint under Section 195 Cr.P.C. is rejected.Mandatory affixation and public reading under Section 82(2)(i) Cr.P.C. - Non-mandatory nature of newspaper publication under Section 82(2)(ii) Cr.P.C. - Compliance with Clause (i) of Section 82(2) Cr.P.C. (public reading and affixation) is mandatory; publication in a newspaper under Clause (ii) is directory and non-compliance does not vitiate the proclamation process under Section 82 Cr.P.C. - HELD THAT: - The Court held that Clause (i) of Section 82(2) Cr.P.C. prescribes mandatory steps - public reading in a conspicuous place, affixation at the person's residence and in the Court-house - and these must be complied with. By contrast, Clause (ii) permits the Court to direct newspaper publication only if it thinks fit, making such publication discretionary. Therefore, failure to publish in the specific newspaper directed by the Trial Court is not fatal to the validity of the Section 82 proclamation where mandatory steps (such as affixation/public reading) have been complied with. [Paras 10]The proclamation under Section 82 Cr.P.C. is not vitiated merely because the newspaper publication directed was not made; mandatory requirements are those in Clause (i).Abuse of process and repeated petitions after withdrawal - The petition is an abuse of process; earlier withdrawal of a similar petition does not create res judicata but repeated petitions pursuing the same relief may be refused in propriety; the present petition is dismissed with costs. - HELD THAT: - The Court noted that although a petition withdrawn earlier does not bar a subsequent petition on res judicata principles, propriety and judicial discipline militate against entertaining repeatedly filed petitions seeking the same relief after an earlier withdrawal made when it became apparent that relief would not be granted. Having considered the earlier proceedings (including the earlier writ withdrawn by the petitioner) and the merits addressed on the prior occasion, the Court found the present petition to be an abuse of process and exercised its discretion to dismiss it and impose costs. [Paras 3, 11]The petition is dismissed as an abuse of the process of the Court and costs are imposed.Final Conclusion: The petition for quashing of FIR No. 14/2011 under Section 174-A IPC is dismissed: the Court upheld the competency of police to register FIRs and of the Magistrate to take cognizance in offences under Section 174-A, held that mandatory requirements of Section 82 Cr.P.C. are limited to Clause (i) while newspaper publication under Clause (ii) is directory, and found the petition to be an abuse of process; costs awarded. Issues involved: Quashing of FIR u/s 174-A IPC, maintainability of present petition, legality of procedures u/s 82 Cr.P.C., cognizance u/s 174-A IPC, abuse of process of the Court.Quashing of FIR u/s 174-A IPC: The Petitioner sought quashing of FIR No. 14/2011 registered u/s 174-A IPC at PS Farsh Bazar, contending that the process was illegal as summons were not served, warrants were issued without proper notice, and the Petitioner was not an absconder. The Petitioner argued that cognizance for an offence u/s 174-A IPC can only be taken on a complaint u/s 195 Cr.P.C. The Respondent, however, argued that affixation alone satisfies the requirements u/s 82 Cr.P.C. and publication in a newspaper is not mandatory. The Court noted that the Police officer can register FIR u/s 174-A IPC based on a complaint and found no merit in the Petitioner's contentions.Maintainability of present petition: The Court referred to a previous petition filed by the Petitioner seeking similar relief, which was withdrawn after the Court was not inclined to grant relief. The Petitioner argued that the earlier withdrawal should not bar the present petition, citing legal precedent. The Court acknowledged that the earlier petition was dismissed as withdrawn but proceeded to hear arguments on merits. The Court emphasized that repeated petitions for the same relief are an abuse of process.Legality of procedures u/s 82 Cr.P.C.: The Petitioner challenged the legality of procedures u/s 82 Cr.P.C., stating that the proclamation was not published in the specified newspaper. The Court explained that while certain aspects of publication are mandatory, others are not, and non-compliance with non-mandatory requirements does not invalidate the process. The Court clarified that the FIR u/s 174-A IPC is an independent cause of action and should not be quashed solely because another case was settled.Cognizance u/s 174-A IPC: The Court analyzed the provisions of Section 195 Cr.P.C. and noted that while most offences under Chapter X are non-cognizable, the offence u/s 174-A IPC is cognizable. Therefore, the Police officer can register FIR and file a charge-sheet for this offence without a complaint u/s 195 Cr.P.C. The Court rejected the Petitioner's argument that cognizance could only be taken on a complaint.Abuse of process of the Court: The Court concluded that the present petition and application were an abuse of the Court's process by the Petitioner. As a result, the petition was dismissed with a cost imposed on the Petitioner for abusing the legal process.