VIPUL M. PANCHOLI, J.

This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 by the original accused No. 5 for quashing and setting aside the FIR being C.R No. I-79/2011 registered with Kamlabaug Police Station and the order dated 17.09.2012 passed by learned Chief Judicial Magistrate, Porbandar by which process is issued against the petitioner.

2. Heard learned advocate Mr. Rushabh R. Shah with learned advocate Mr. Hardik Dave for the petitioner and learned APP Mr. Rutvij Oza for the respondent State. Though served, respondent No. 2 complainant has not remained present.

3. Learned advocate for the petitioner submitted that the respondent No. 2-complainant filed FIR being C.R No. I-79/2011 registered with Kamlabaug Police Station, Porbandar for the offence punishable under Sections 454, 457, 380, 427 and 114 of Indian Penal Code, wherein the petitioner is shown as accused No. 5. Learned advocate referred to the allegations made in the said FIR against the present petitioner and submitted that none of the ingredients of the alleged offence are made out against the petitioner. At this stage, it is further submitted that before registration of the said FIR, the original accused No. 1-Kirit Sadiya filed one complaint before the Police Inspector, Kamlabaug Police Station against the present respondent No. 2 complainant-Rahul Dangar, inter alia alleging that said Rahul Dangar was in the process of illegally entering into the residential house of Kirit Sadiya and was likely to take illegal possession of the house belonging to Shri Kirit Sadiya. The said complaint was registered as FIR being C.R No. I-49/2011 under Sections 427, 447, 504, 506(2) of Indian Penal Code and Sections 3(1) and 5 of the Atrocities Act against the present respondent No. 2. The Investigating Officer, after the investigation, filed charge-sheet against the respondent No. 2.

4. It is further submitted that the present respondent No. 2 filed Criminal Inquiry Case No. 62 of 2011 in the Court of learned Chief Judicial Magistrate, Porbandar on 04.06.2011 against Kirit Sadiya and others including the present petitioner for the alleged offence of illegal house trespass, house breaking and theft. The said complaint was sent for police inquiry under Section 202 of the Code of Criminal Procedure, 1973. It is submitted at this stage that the respondent No. 2 by suppressing the aforesaid aspects filed Special Criminal Application No. 1469 of 2011 before this Court, wherein the grievance was raised that the respondent No. 2-complainant has given a complaint on 12.05.2011 before the Kamlabaug Police Station. However, the same is not registered as FIR and therefore, necessary direction be issued to the concerned police authority for registration of the same as FIR. This Court, therefore, directed that the respondent No. 2 herein shall approach before the concerned police station for registration of the FIR and the same shall be registered. Thus, on the basis of the order passed by this Court, the FIR being C.R No. 79/2011 came to be registered against the petitioner and others. At this stage, it is further contended that after the registration of the FIR, the respondent No. 2 withdrew the private complaint being Inquiry Case No. 65 of 2011 filed by him. The same was permitted to be withdrawn on 27.09.2012 Thus, it is contended that when the respondent No. 2 has failed to obtain the order from the learned Magistrate of investigation u/s. 156(3) of the Code of Criminal Procedure, 1973, he filed petition before this Court and thereafter the FIR was registered against the petitioner and others and thereafter he has withdrawn the private complaint filed by him. Hence, the impugned FIR is nothing but an abuse of the process of the Court.

5. Learned advocate Mr. Shah thereafter contended that after registration of the FIR, the Investigating Officer carried out the investigation and thereafter filed ‘A’