Point of Law : Quash of FIR/Complaint - Withdrawal of complaint, if any, made by respondent No.2 is of no consequence and would not lend any legitimacy to illegal registration of impugned FIR.

JUDGMENT :

1. The petitioners, four in number i.e. father and his three sons, have jointly filed this petition under Section 561-A Cr.P.C. seeking quashment of FIR No.06/2018 under Sections 406, 420, 120-B and 506 (ii) RPC registered in Police Station Magam primarily on the ground that while the learned Judicial Magistrate 1st Class (Sub-Judge), Pattan [“the Trial Magistrate”] had taken cognizance and was seized of the complaint filed by respondent No.2, the police of Police Station, Magam was not competent to register an FIR on the same facts and set in motion the investigation.

2. With a view to appreciating the grounds taken by the petitioners to challenge the registration of impugned FIR, it is necessary to first set out material facts:-

Respondent No.2 is brother of Mst. Asifa Rasool, who conducted nikah ceremony with petitioner No.2, Ghulam Rasool Bhat on 29.12.2016. Soon after the nikah ceremony and before the ruksati of Mst. Asifa Rasool, a dispute arose between the parties to marriage. It is allegation of respondent No.2 that the petitioners had concealed the factum of petitioner No.2 already having a wife and a subsisting marriage with her. As is usual, during nikah ceremony some cash amount and gold ornaments by way of mehar were handed over to Mst. Asifa Rasool. As is claimed, an effort was made to amicably resolve the dispute. It is the allegation of respondent No.2 that the petitioners called him along with Mehar items at their residence at Archanderhama on 26.012.2017 at 7.30 p.m where the petitioners by deceitful means made respondent NO.2 to deliver gold items, clothing and cash etc, which, as per the complainant, were retained by the petitioners with an intention to misappropriate the same.

Be that as it may, it is in this background of allegations, respondent No.2 filed a complaint before the Trial Magistrate on 28.12.2017 for taking appropriate action against the petitioners herein. The Trial Magistrate after recording the statement of respondent No.2 and one of his witnesses, namely, Abdul Khaliq Dar, deferred the issuance of process and directed SDPO Magam for conducting inquiry under Section 202 of the Code of Criminal Procedure with a view to ascertain the truth and falsehood of the allegations made in the complaint. This was done by the Trial Magistrate vide its order dated 28.12.2017. While the matter was before the SDPO, Magam for conducting investigation in the matter, it transpires that on 08.01.2018, respondent No.2 launched parallel proceedings and filed a written complaint on same allegations before the Incharge Police Station, Magam seeking registration of FIR against the petitioners. Interestingly, while the Trial Magistrate was seized of the matter and awaiting inquiry report in terms of Section 202 Cr.P.C. from the SDPO, Magam, Police Station Magam registered FIR No.06/2018 under Sections 406, 420, 120-B and 506(ii) RPC and set the investigation in motion. It is this FIR the petitioners are aggrieved of and have challenged the same, inter alia, on the grounds noticed herein above.

3. On being put on notice, S.H.O. Police Station, Magam has filed his status report. In the status report he has not dealt with the specific contention of the petitioners that the Trial Magistrate, Pattan was already seized of the complaint containing same allegations, as have been made the basis of registration of the impugned FIR. He, however, has tried to explain the circumstances under which the impugned FIR came to be registered in the Police Station, Magam. Respondent No.2 has also filed his objections and has claimed that, though, he had filed a criminal complaint before the Trial Magistrate but since the offences committed by the petitioners were cognizable, as such, he moved a written application before the S.H.O., Police Station, Magam on 08.01.2018 for registration of FIR under Section 154 Cr.P.C. After the FIR was registered, he withdrew the complaint, which was pending consideration of the learned Trial Mag