Raja Saeed Akram Khan, C.J. This is an appeal, by leave of the Court, against the judgment of the High Court dated 18.11.2022, through which the writ petition filed by the appellant, herein, has been dismissed.
2. The appellant, herein, filed an application before the Justice of Peace, Muzaffarabad for a direction to the concerned Police for lodging FIR against Respondent No. 3 on account of alleged embezzlement of exchequer. The application was dismissed vide order dated 01.04.2016. The appellant filed a writ petition before the High Court which has also been dismissed through the impugned judgment on the ground that the appellant has got an alternate remedy of filing private complaint.
3. The learned counsel for the appellant contended that the impugned judgment of the High Court is against law and the facts. The learned High Court has ignored that the appellant is a public functionary and not a private person, hence, the question of filing of private complaint does not arise. He further added that in the comments the respondents have wrongly taken the stance that FIR in the matter in hand had already been lodged, whereas, the fact of the matter is that the alleged FIR has no nexus with the case in hand.
4. Conversely, Miss Noshaba Iqbal, Advocate, the learned counsel representing Respondent No. 3 argued that previously a case in the offence under Section 406, APC was registered against Respondent No. 3 and after completion of the investigation challan was also presented in the competent Court, however, the respondent was acquitted of the charge, hence, subsequent FIR in the same matter cannot be lodged. It is the settled law that nobody can be vexed twice, hence, the Courts below have not committed any illegality while passing the impugned judgments. She placed reliance on the cases reported as 2011 SCR 50 and 2022 PCr.LJ 1050.
5. We have carefully considered the arguments presented by the learned counsel for both the parties and gone through the record. The record shows that Respondent No. 3 was an employee of the Utility Stores Corporation. It is alleged that during his posting as Store Incharge at Utility Store Plait, Muzaffarabad, he misappropriated an amount of Rs.512,453. Of this sum, an amount of Rs.305,067 was recovered, leaving an outstanding balance of Rs. 207,336 regarding which Respondent No. 3 had provided a Judicial Stamp Paper on which he undertook to repay the embezzled amount, however, despite this commitment, he failed to fulfil his promise. In light of these allegations, the appellant initially wrote a letter to the Station House Officer (SHO), City Police Station, Muzaffarabad, on 14.05.2015 requesting for registration of FIR against Respondent No. 3, however, the FIR was not registered. Subsequently, two additional letters were sent on 04.08.2015 and 04.09.2015 but despite these repeated requests, the FIR was not lodged. Consequently, the appellant resorted to file an application under Section 22-A, Cr.P.C. before the Justice of the Peace at Muzaffarabad. The Police responded to this application with comments, stating that an FIR (No. 29/2014) pertaining to the alleged incident had already been registered and challan was presented in the competent Court, hence, second FIR could not be lodged. The application was dismissed by the Justice of Peace. In an attempt to seek redressal, the appellant filed a writ petition before the High Court, which also remained unsuccessful.
6. In this case, the learned High Court dismissed the writ petition primarily on the basis that the appellant had an alternative remedy i.e., the option to file a private complaint, therefore, the writ petition was not a valid avenue for seeking redressal of grievance. It's worth noting that when an offense is committed, the initial recourse available to a complainant is to promptly lodge an FIR with the police. If the polite do not register the case, the complainant can then escalate the matter to higher police authorities or immediately file a private complaint before the concerned Magistrate or a Court of competent jurisdiction. In such a scenario, when a complainant has these alternate avenues for redressal of his grievance, filing of a writ petition is generally not permissible.
However, additionally, the complainant is also provided with the recourse of Section 22-A, Cr.P.C. In this specific case, the appellant invoked Section 22-A, Cr.P.C by submitting an application to the Justice of Peace. Unfortunately, his application was dismissed, leaving him with the only remaining option of filing a writ petition to challenge the Justice of Peace's order, citing the violation of law. In this context, we believe that the High Court's decision is erroneous in asserting that the appellant could have pursued a private complaint as an alternative remedy. Instead, after the dismissal of the application under Section 22-A of Cr.P.C, his sole recourse was indeed to file the writ petition.
7. So far as the argument of the learned counsel for Respondent No. 3 that nobody can be vexed twice, is concerned, we have no cavil with this principle of law, however, in this case the situation is quite different. A perusal of FIR No. 29/2014 reveals that it was related to alleged blackening of sugar by Respondent No. 3, whereas, in this case the appellant-complainant claims that Respondent No. 3 has misappropriated an amount of Ra.512,453. Of this sum, an amount of Rs.305,067 has been recovered, leaving an outstanding balance of Rs. 207,386 regarding which Respondent No. 3 had submitted a Judicial Stamp Paper on which he had undertaken to repay the embezzled amount, however, despite this commitment, he failed to fulfil his promise. Thus, in our opinion both the incidents are quite different, and the principle of double jeopardy does not apply.
8. The case law cited by the learned counsel for Respondent No. 3 does not apply to the case in hand, in view of its peculiar facts and circumstances.
In view of the above, we are inclined to accept this appeal, set aside the judgments recorded by the Courts below and direct Respondent No. 2 to lodge an FIR against Respondent No. 3 and proceed further strictly in accordance with law.
No order as to costs.