Pooja Upadhyay vs Chandramani & Anr.

Heard Mr. M. Nath, learned Senior Counsel assisted by Mr. A. Bhattacharjee, learned counsel appearing for the petitioner and Mr. B. Sharma, learned APP for the state as well as the Petitioner in Person as Respondent No. 1.

By this application, filed under Section 528 read with Sections 438 and 442 of the BNSS, 2023, the petitioner has prayed for quashing of the complaint case registered as C.R. Case No. 616/2024 under Sections 195/384 of the IPC pending before the Court of the learned st Judicial Magistrate, 1 Class, Kamrup (M), Guwahati, Assam. The petitioner has also challenged the order dated 09.09.2024 passed by st the learned Judicial Magistrate, 1 Class, Kamrup (M) in C.R. Case No. 616/2024 whereby the final report submitted by the police was rejected, the FIR was accepted and a direction was issued for registration of the complaint case. The petitioner has further challenged the order dated 13.11.2024 passed by the learned JMFC, Kamrup (M) whereby cognizance of the offences under Sections 195/384 of the IPC was taken against the petitioner in the aforesaid complaint case. Furthermore, the petitioner has challenged the orders dated 28.11.2024 and 20.01.2025 whereby the learned Judicial st Magistrate, 1 Class, Kamrup (M) issued bailable warrants of arrest against the petitioner in the said complaint case.

It is the case of the petitioner that she is working as a teacher in Arunachal Pradesh and that she was introduced through social media to the brother of Respondent No. 1, namely, Chandan Pathak who was working as an Assistant Engineer in the PWD at Bayrampur, in the State of Uttar Pradesh. The petitioner further stated that over time their friendship grew and that the brother of Respondent No. 1 took her nude photographs through video calls and thereafter started blackmailing her by making continuous calls. The petitioner further stated that the brother of Respondent No. 1 demanded an amount of Rs. 5 lakhs from her and called her to a hotel where he allegedly mixed intoxicating substances in her coffee and forcibly raped her. She further stated that when she tried to resist and call the police personnel he broke her mobile phones and attempted to kill her. She thereafter stated that the brother of Respondent No. 1 had introduced her to his parents and had promised to marry her. She further stated that sindoor was put on her head after taking her to the Kamakhya Temple. However, she subsequently stated that when she requested him to marry her, he threatened to kill her and further threatened to post her nude photographs and videos on social media. Stating the aforesaid facts, the petitioner lodged a complaint before the Senior Superintendent of Police, Guwahati, Paltan Bazar which was registered as Paltan Bazar P.S. Case No. 97/2023. It is the further case of the petitioner that on 12.03.2023, the brother of Respondent No. 1 asked her to meet him in Guwahati and directed her to book a hotel in Guwahati. She stated that under threat she was asked to book the hotel by representing themselves as a married couple.

The petitioner further stated that the brother of Respondent No. 1 reached Guwahati by train on 15.02.2023 at around 9:30 p.m. and asked her to decorate the hotel room to which she agreed and that photographs were also taken on that night. Thereafter, the petitioner stated that on 17.02.2023, the brother of Respondent No. 1 took her to the Kamakhya Temple and after returning to the hotel she requested him to get coffee. He brought coffee from outside and after consuming the same she became unconscious. She alleged that at that juncture, the brother of Respondent No. 1 raped her. When she tried to call the police he broke her telephone. She further stated that he had promised to marry her and had put sindoor on her head and by calling his father pretended that he was serious about her and would marry her. However, he subsequently refused to marry her.

It is the further case of the petitioner that the police investigated the case pursuant to the FIR lodged by her and upon finding a prima facie case submitted a charge-sheet on 18.11.2023 vide Charge-Sheet No. 460/2023. Thereafter, the petitioner stated that Respondent No. 1 went to her house in Arunachal Pradesh, abused her father and demanded money. In respect of the aforesaid incident she filed a complaint case on 13.01.2024 which was thereafter forwarded to the police for investigation. Upon completion of the investigation, the police submitted a charge-sheet on 23.09.2024 under Section 500 read with Section 34 of the IPC against Respondent No. 1 as well as the brother of Respondent No. 1, namely, Chandan Pathak.

In the meantime, Respondent No. 1 filed a cross-case on 08.10.2023 before the Officer-in-Charge of Paltan Bazar Police Station which was registered as Paltan Bazar P.S. Case No. 450/2023 under Section 420 of the IPC. In the said FIR, Respondent No. 1 stated that the petitioner along with a group of persons went to Hotel Chirom and manipulated the records of the said hotel particularly the hotel register. It was alleged that the petitioner by using whitener inserted the name of his brother in the hotel register against the date 15.02.2023. He further stated that at the time mentioned in the said entry, his brother was travelling by train from Lucknow to Guwahati. Respondent No. 1 stated that the petitioner had reached Guwahati one day prior to the arrival of his brother, i.e. on 14.02.2023 at around 1:09 p.m. and that she had manipulated the date in the register of the said hotel by inserting the time of arrival at 12:57 p.m. on 15.02.2023.

The petitioner stated that the police investigated the said case and submitted a final report on 30.12.2023. Thereafter, on 07.09.2024 Respondent No. 1 filed a protest petition being Protest Petition No. 3869/2024. By order dated 09.09.2024, the learned Judicial st Magistrate, 1 Class, Kamrup (M) rejected the final report and upon accepting the protest petition directed registration of a complaint case. The petitioner further stated that the learned Court upon perusal of the initial statements of Respondent No. 1 and his brother observed that the Investigating Officer had submitted the final report in a routine and casual manner. Pursuant thereto the complaint case was registered as C.R. Case No. 616/2024 and cognizance was taken on 13.11.2024 for the offences under Sections 195/384 of the IPC against the petitioner. The petitioner further stated that subsequent thereto a bailable warrant of arrest was issued against her. The petitioner also stated that Respondent No. 1 had lodged another complaint case on 06.04.2024 which was registered as C.R. Case No. 272/2024. However, it was stated that Respondent No. 1 did not appear in the said case and as a result the case remained pending before the learned JMFC, Kamrup (M), Guwahati. The petitioner further stated that the brother of Respondent No. 1 had lodged complaint cases in the State of Uttar Pradesh which resulted in submission of final reports on the ground of want of jurisdiction. She thereafter submitted that the brother of Respondent No. 1 had also filed protest petitions in those cases which are pending disposal. The present proceeding relates to the complaint case registered as C.R. Case No. 616/2024 which has been challenged by the petitioner along with the order taking cognizance and the orders issuing warrants of arrest.

The learned Senior Counsel appearing on behalf of the petitioner submitted before this Court that the protest petition filed by Respondent No. 1 on 07.09.2024 was not maintainable inasmuch as an application had already been filed by Respondent No. 1 and his brother on 06.04.2024. He submitted that the final report in respect of the FIR lodged by Respondent No. 1 had already been submitted by the police on 30.12.2023. Thereafter, Respondent No. 1 and his brother had filed a complaint case under Section 210 read with Section 200 of the Cr.P.C. praying for taking cognizance of the offences punishable under the relevant provisions of the IPC and other statutes along with the police report submitted under Section 173(2) of the Cr.P.C. by discarding the said report on the ground of defective investigation. A further prayer was made for a direction for fair investigation into the complaint by an independent agency. The learned Senior Counsel thereafter submitted that the instant complaint case was filed after submission of the final report by the police and is in substance, in the nature of a protest petition filed by Respondent No. 1 and his brother. He submitted that the prayers made in the said complaint also demonstrate that Respondent No. 1 and his brother were aware of the final report and had specifically prayed for discarding the same.

The learned counsel thereafter submitted that Respondent No. 1 subsequently filed a protest petition on 07.09.2024 seeking substantially the same reliefs, rejection of the conclusion of the Investigating Officer in FIR No. 450/2023 as reflected in Final Report No. 4949/2023 and taking of cognizance of the offences. He submitted that the said protest petition was not maintainable as Respondent No. 1 had already instituted a complaint case seeking to challenge the report submitted by the Investigating Officer. In support of his submission the learned counsel placed reliance upon the judgment of the Hon'ble Supreme Court in Subrata Choudhury @ Santosh Choudhury v. State of Assam reported in AIR 2024 SC 5690 wherein according to the learned counsel it has been held that a second complaint is maintainable only where the earlier complaint petition had been dismissed for default and not on merits. The learned counsel appearing for the petitioner also placed reliance upon the judgment of the Hon'ble Supreme Court in Kusha Daruka v. State of Odisha, reported in AIR 2024 SC 790 wherein the Hon'ble Supreme Court deprecated the practice of suppression of material facts. He submitted that the complaint filed by Respondent No. 1 and his brother on 06.04.2024 is still pending and as such the subsequent complaint case being C.R. Case No. 616/2024 is not maintainable. He therefore submitted that the subsequent orders passed in the said complaint case are also liable to be quashed.

On the other hand, Respondent No. 1 appearing in person submits before this Court that he had filed a complaint on 08.10.2023 which was registered as Paltan Bazar P.S. Case No. 450/2023 alleging manipulation by the petitioner in the register of the hotel where she and his brother had stayed from 15.02.2023 to 19.02.2023. He submits that the said allegation was not properly investigated. He further submits that having received information in that regard he filed a complaint under Section 210 read with Section 200 of the Cr.P.C. which was registered as C.R. Case No. 272/2024. Respondent No. 1 appearing in person submits that neither he nor his brother had any knowledge regarding submission of the final report as they had not received any notice from the concerned Court. He further submits that the Investigating Officer had indicated his intention to submit a closure report and being aggrieved thereby he filed the aforesaid complaint case not only under Section 200 of the Cr.P.C. but also under Section 210 CrPC thereof. He submits that the expression “report” used in the prayer portion of the said complaint does not refer to the final report submitted by the Investigating Officer but to a report contemplated under Section 210 of the Cr.P.C. He further submits that he was informed that the final report would be submitted before the Court on 07.09.2024 and accordingly he filed the protest petition against the same. By the said protest petition, he prayed that the Court should reject the conclusion of the Investigating Officer and take cognizance of the offences. He submits that the said protest petition is not a second protest petition as alleged by the learned counsel for the petitioner. Respondent No. 1 appearing as petitioner in person, in support of his submissions has placed reliance upon the judgment of the Hon'ble Supreme Court in Shiv Shankar Singh v. State of Bihar & Anr. reported in AIR Online 2011 SC 447 as well as the judgment of the Hon'ble Supreme Court in Pradeep S. Wodeyar v. State of Karnataka rendered in Criminal Appeal No. 1288/2021.

I have heard the learned counsel for the parties and have carefully perused the records of the case. It is the mandate of law that upon submission of a final report by the Investigating Officer, notice ought to be issued to the informant by the Court before which the final report is submitted. In the present case, it is seen that Respondent No. 1 and his brother are residents of the State of Uttar Pradesh and that the brother of Respondent No. 1 is working as an Assistant Engineer in the PWD in the State of Uttar Pradesh. However, the informant in the case registered at Paltan Bazar Police Station was Respondent No. 1 and not his brother. There is therefore a possibility that notice was issued to Respondent No. 1 but that he did not receive the same. It is further noticed that after a period of almost four months from the submission of the final report in Paltan Bazar P.S. Case No. 450/2023, Respondent No. 1 and his brother filed a complaint before the learned Chief Judicial Magistrate, Kamrup (M), Guwahati under Section 200 read with Section 210 of the Cr.P.C. In the said complaint petition Respondent No. 1 and his brother stated that it was the petitioner who had checked into the hotel room on 14.02.2023 and that the brother of Respondent No. 1 had reached the hotel on 15.02.2023 at around 9:45 p.m.

It is further stated in the said complaint that after some time the petitioner along with a group of persons had gone to the said hotel and manipulated the records by changing the date and time of check-in to 15.02.2023 at 12:47 p.m. allegedly in connivance with the hotel staff. It was specifically stated in the said complaint that the Investigating Officer had indicated his intention to submit a closure report and that being aggrieved thereby Respondent No. 1 and his brother had instituted the complaint case. Had Respondent No. 1 been aware of the submission of the final report there would have been no occasion for him to invoke Section 210 of the Cr.P.C. Section 210 of the Cr.P.C. contemplates that where a complaint case is instituted and it comes to the notice of the Court that an investigation by the police in respect of the same offence is pending, the Court shall stay the proceedings of the complaint case and call for a report from the police officer conducting the investigation.

It is this provision that Respondent No. 1 appears to have invoked apprehending that the Investigating Officer would submit a final report in connection with the case lodged by him. It can also reasonably be concluded that the reference to the “report” in the prayer made by Respondent No. 1 was in the context of Section 210 of the Cr.P.C. The other prayer made in the said application seeking a direction for a fair investigation also indicates that Respondent No. 1 was not aware of the submission of the final report. Further, it is seen that during the pendency of the said complaint case being C.R. Case No. 272/2024 although the complainant was not personally present, he took steps in the matter on subsequent dates. It is further noticed that on 07.09.2024 Respondent No. 1 filed a protest petition against Final Report No. 4949/2023 dated 30.12.2023 submitted by the Investigating Officer in connection with Paltan Bazar P.S. Case No. 450/2023. A bare perusal of the said protest petition makes it abundantly clear that Respondent No. 1 had expressed his grievance by alleging that the petitioner along with others had gone to the hotel and altered the guest entry register by inserting the name of his brother therein along with other particulars.

By the said protest petition, Respondent No. 1 prayed for rejection of the conclusion arrived at by the Investigating Officer in connection with the said Paltan Bazar P.S. case and for taking cognizance of the offences. The prayers made in the two applications, i.e., the complaint case being C.R. Case No. 272/2024 and the subsequent C.R. Case No. 616/2024 are however materially different. It cannot therefore be said that the complaint case filed on 07.09.2024 was a second complaint or that the complaint case filed on 06.04.2024 was the first protest petition. It also cannot be said that Respondent No. 1 had filed one complaint after another as the two proceedings stand on different footing. Accordingly, this Court does not deem it appropriate to quash C.R. Case No. 616/2024 or the subsequent orders passed therein.

The Hon'ble Supreme Court in Mahesh Chand v. B. Janardhan Reddy & Anr. reported in AIR 2003 SC 702 dealt with a somewhat similar situation. In that case, the complainant had lodged an FIR pursuant to which investigation was conducted. In the meantime, being dissatisfied with the investigation carried out by the police authorities, the complainant filed a criminal complaint before the Court. Upon completion of the investigation in connection with the first FIR the police submitted a final report against which the complainant filed a protest petition. The Court however accepted the final report and simultaneously closed the complaint case filed by the complainant. Thereafter, the complainant filed a third complaint on the same set of facts. The said complaint was challenged on the ground that it was barred and the High Court quashed the same. The matter was carried before the Hon'ble Supreme Court and the Court held that the view taken by the High Court that the second complaint was completely barred was not correct. The Hon'ble Supreme Court observed that there is no statutory bar against filing a second complaint on the same facts. It was further held that where a previous complaint is dismissed without assigning any reasons, a second complaint is maintainable. In the present case, the distinguishing feature is that the earlier complaint case was not closed and on the basis of the protest petition the learned JMFC, Kamrup (M) took cognizance of the offences against the petitioner. The order taking cognizance therefore cannot be said to be unsustainable in law. The case relied upon by the learned counsel for the petitioner in Subrata Choudhury (supra) stands on a different footing. In the said case, it was noticed that the learned Chief Judicial Magistrate had accepted the final report after hearing the complainant on the protest petition and that the subsequent complaint on the same set of allegations was held to be barred. The facts of the present case however are different.

In the present case, the respondent had earlier filed a complaint petition being dissatisfied with the investigation conducted by the police. Upon subsequently coming to know that the final report had been submitted the respondent filed a protest petition challenging the said final report. The said protest petition was thereafter considered by the learned JMFC, Kamrup (M) and cognizance was taken. In the facts and circumstances of the present case, this Court is of the considered view that the said proceeding is not barred under any provision of law.

Accordingly, the present petition stands dismissed and disposed of.