IMPORTANT POINT
The filing of a subsequent F.I.R. based on the same allegations as an earlier stayed complaint does not constitute an abuse of process of law.

ORDER

1. Heard learned Senior Counsel for the appellants, learned counsel for the State and the learned counsel for respondent No.4.

2. The dispute between the appellants and respondent No.4 arises out of the order passed by respondent No.4 on 21.10.2002 for supply of woolen yarn. On 08.07.2003, respondent No.4 filed a complaint under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.) before the learned Chief Judicial Magistrate, Bhadohi (hereinafter referred to as “the C.J.M.). After the complaint was registered, the learned C.J.M. passed an order directing that it shall be treated as a regular criminal case and therefore, he directed that the procedure provided under Section 200 of the Cr.P.C. should be followed. The said order was passed on 08.07.2003 which was challenged by respondent No.4. The challenge failed and the said order attained finality. It appears that respondent No.4 filed a complaint on 12.01.2004 in the same subject matter which was the same subject matter of earlier complaint under Section 156(3) of the Cr.P.C. A First Information Report (hereinafter referred to as “the F.I.R.”) was registered on the basis of the same. Even charge-sheet was filed and cognizance was taken. In the meanwhile, the appellants filed a petition for quashing the F.I.R. By order dated 29.01.2004, the High Court declined to interfere by observing that on the basis of application made by respondent No.4, the complaint filed by respondent No.4 had been stayed. The High Court granted protection from arrest by declining to quash the subsequent F.I.R. and the proceeding based on that. Thereafter, the appellants filed a Revision Application under Section 401 of the Cr.P.C. before the High Court for quashing the order of cognizance on the charge-sheet filed. Initially, while admitting the Revision Application, stay was granted. By the impugned order, Revision Application was dismissed.

3. The only ground which was urged before the High Court and before this Court is that earlier complaint and the F.I.R. contained the same allegations and therefore, filing the F.I.R. is nothing but an abuse of process of law.

4. Learned counsel for respondent No.4 has pointed out that the first complaint filed by respondent No.4 has been stayed by the learned C.J.M. by the order dated 27.01.2004 in exercise of powers under Section 210 of the Cr.P.C. He has produced the copies of the said order. He states that the complaint has not proceeded as the stay is operating. He also makes a statement, on instructions, that respondent No.4 will apply for withdrawal of the said complaint bearing No.125/2003 pending before the Court of learned C.J.M., Bhadohi. We accept the said assurance.

5. In view of the statement made by learned counsel for respondent No.4, now the issue regarding simultaneous prosecution of two proceedings does not survive. As stated earlier, the prayer for quashing the F.I.R. has been rejected by the High Court and that order has attained finality.

6. Therefore, there is no reason to entertain this appeal and the same is dismissed.

7. A copy of this Order shall be forwarded to the Court of learned C.J.M., Bhadohi. On receipt of the copy of this Order, the learned C.J.M., Bhadohi shall dispose of case No.125/2003 as withdrawn. All contentions on merits of the criminal case are left open.

8. We make it clear that unless the personal presence of the appellants is mandatory, the Trial Court shall grant exemption from personal appearance provided that they are always represented by an advocate.