SAROJ TIKADER v. STATE — 1997 DIGILAW 484 (CAL)

D. B. DUTTA, J. ( 1 ) SAROJ Tikader, one of the accused persons (accused No. 1) of C. R. Case No. 208 of 1995 pending in the Court of Sub Divisional Judicial Magistrate, Islampore has preferred the present revisional application under section 401 read with section 482 of the Code of Criminal Procedure and has prayed for setting aside of the two orders that were passed by the Magistrate on 4. 1. 96 and 9. 1. 97 in the aforesaid case and also for quashing the said proceeding. ( 2 ) C. R. Case No. 208 of 1995 arose out of a petition of complaint filed before the Magistrate on 6. 6. 95 by the opposite party No. 2, Puspa Rani Tikadar, under sections 498a, 304b/511 and 307/34 of the Indian Penal Code against the present petitioner and his seven relatives such as parents, brothers, sisters and maternal uncle and aunt (accused Nos. 2 to 8) on the allegations which may be stated as follows. The complainant was married to the petitioner about 5/6 years back. Her parents and other near relatives gave sufficient cash and made various other valuable gifts at the time of marriage, but that did not satisfy the desire and aspirations of the accused persons and as a result, since after the marriage, the accused persons started subjecting the complainant to mental and physical torture for extorting motor cycle, T. V. and more money from the parents of the complainant. Sometime in the month of April, 1995, the accused Nos. 1 to 6, aided and abetted by the accused Nos. 7 and 8, poured kerosin oil on the person of the complainant in order to kill her by setting her on fire, but due to timely intervention by the neighbours, the complainant was rescued. Finally, on 29. 4. 95 the accused Nos. 1 to 6 assaulted the complainant causing injuries on her person and drove her out of her matrimonial home. Since then the complainant has been living in her brother's house. The complainant ledged an information with the Goalpukur P. S. on 6. 5. 95 for taking action against the accused persons, but uptill now the said P. S. has not registered any case nor made any inquiry. The complainant had also lodged a complaint with the Gramin Mahila Samity which tried in vain to resolve the problem. The accused Nos. The complainant ledged an information with the Goalpukur P. S. on 6. 5. 95 for taking action against the accused persons, but uptill now the said P. S. has not registered any case nor made any inquiry. The complainant had also lodged a complaint with the Gramin Mahila Samity which tried in vain to resolve the problem. The accused Nos. 1 to 6 have committed offences under sections 498a, 104b/511 and 307/34 of IPC while the accused Nos. 7 and 8 are liable to be prosecuted for abetment of the aforesaid offences. ( 3 ) THE learned Magistrate took cognizance upon this complaint on 6. 6. 95, the date on which it was filed, and deferred the examination of the complainant opposite party No. 2 and her three other witnesses present. This examination was completed on 4. 1. 86 and upon consideration of the statements of the complainant and her three witnesses recorded under section 200 Cr. PC the learned Magistrate found a strong prima facie case under section 498a/307 read with section 34 IPC against the accused Nos. 1 to 6 and under section 498a read with section 34 IPC against the accused Nos. 7 and 8 and accordingly issued summons against all the accused persons by his order dated 4. 1. 96. On 22. 5. 96, the learned Magistrate received the return of the summons issued against the accused Nos. 1 to 6. From the process server's report, it appeared to the Magistrate that the accused Nos. 1 to 6 refused to receive the summons and accordingly, the learned Magistrate by his order dated 22. 5. 95 issued warrant of arrest against the accused Nos. 1 to 6. Thereafter, all the accused persons appeared before the Magistrate either having been brought under arrest on the strength of warrant of arrest or by surrendering before him and were, ultimately, granted bail by the learned Magistrate. On 9. 1. 97, copies of all the documents within the meaning of section 208 Cr. PC were ready and served upon all the accused persons who were present on that day and the learned Magistrate transferred the case to his own file. On receipt of the record of that case on that very day, the learned Magistrate by his subsequent order dated 9. 1. 97 fixed a date for appearance of the accused persons and for commitment to sessions. On receipt of the record of that case on that very day, the learned Magistrate by his subsequent order dated 9. 1. 97 fixed a date for appearance of the accused persons and for commitment to sessions. ( 4 ) THE complainant opposite party No. 2 had earlier instituted another case (C. R. Case No. 156 of 1995) against the present petitioner as well as his seven co-accused on filing a complaint before the same Magistrate on 8. 5. 95 under section 498a of IPC. ( 5 ) A copy of that earlier complaint has been annexed with the revisional application to indicate the allegations on which it was based. In the said complaint, the case of demand for more dowry against the accused persons was made out and on the inability of the complainant's brothers to meet the demand, the accused persons are also stated to have subjected the complainant to mental and physical cruelty. In that complaint as well the story of assault upon the complainant on 29. 4. 95 was there and it was alleged that the complainant got herself examined by the Medical Officer of Kanki PHC who granted a medical certificate. In that complaint, there was a reference to a salish that is said to have been held between the parties in presence of the local people. ( 6 ) A copy of the order sheet of the earlier proceeding (C. R. Case No. 156 of 1995) has been annexed with the revisional application to show the day-to-day progress of that proceeding. ( 7 ) ON 8. 5. 95, the date on which the earlier complaint was filed, the complainant was present with three witnesses and the learned Magistrate, without examining any of them, deferred the examination under section 200 Cr. PC till 5. 6. 95. On 5. 6. 95, the complainant filed a petition for time and the prayer was allowed till 5. 7. 95 for examination under section 200 Cr. PC long before the date fixed, at the instance of the complainant, the case record was put up on 14. 6. 95 before the Magistrate-in-charge in the absence of the regular incumbent, and the complainant filed a petition before him on that date praying for dismissal of this case alleging that who did not want to proceed with the case on the ground stated in the petition. 6. 95 before the Magistrate-in-charge in the absence of the regular incumbent, and the complainant filed a petition before him on that date praying for dismissal of this case alleging that who did not want to proceed with the case on the ground stated in the petition. The learned Magistrate-in-charge by his order dated 14. 6. 95, directed this application to be put up before the regular presiding officer. The record could not be produced before the regular presiding officer on 5. 7. 97, the date fixed, as it was sent to the copying department in connection with an application for certified copy. The record was ultimately received by the learned Magistrate on 18. 7. 95 but the complainant's petition that was filed on 14. 6. 95 for non-prosecution/withdrawal of the case does not appear to have been put up before him and he fixed 21. 8. 95 as the next date for examination under section 200 Cr. PC without disposing of the said petition for non-prosecution of the case. On the next three occasions namely 21. 8. 95, 30. 10. 95 and 9. 1. 96, the complainant was absent without taking any steps and the examination of the complainant and witnesses under section 200 Cr. PC was deferred from time to time. Finally, on 15. 6. 96, the date fixed for such examination, the complainant was again absent without taking any steps and the learned Magistrate by his order dated 15. 6. 96 dismissed the complaint under section 203 Cr. PC. ( 8 ) THE complaint opposite party No. 2 did also file two other cases under section 125 Cr. PC being M. R. Case Nos. 66 of 1995 and 93 of 1995 before the Magistrate claiming maintenance allowance against the petitioner, at two different rates of Rs. 1500/- per month and Rs. 500/- per month respectively on 8. 5. 95 and 6. 6. 95 along with the two criminal proceedings namely C. R. Case No. 156 of 1995 and C. R. Case No. 208 of 1995, as already referred to above. ( 9 ) COPIES of the two applications that were filed by the opposite party No. 2 under section 125 Cr. 500/- per month respectively on 8. 5. 95 and 6. 6. 95 along with the two criminal proceedings namely C. R. Case No. 156 of 1995 and C. R. Case No. 208 of 1995, as already referred to above. ( 9 ) COPIES of the two applications that were filed by the opposite party No. 2 under section 125 Cr. PC were also annexed with the revisional application which would indicate that the episode of pouring of kerosin oil was introduced only in the latter M. R. Case being M. R. 93 of 1995 and not in the earlier one being M. R. Case No. 66 of 1995. ( 10 ) THE grounds pleaded in the revisional application for quashing the two orders dated 4. 1. 96 and 9. 1. 97 passed in the impugned criminal proceeding (C. R. Case No. 208 of 1995) as well as the said proceeding itself, as far as can be gathered from the application, may be stated as follows. The impugned proceeding has been filed only for harassing the petitioner and her co-accused persons. It is a false case based on allegations which are contradictory with those made in the earlier criminal proceeding being C. R. Case No. 156 of 1995. The old parents of the petitioner have also been falsely implicated and the maternal uncle and aunt who lived in Howrah, which is far away from Uttar Dinajpore, the place of occurrence, have also been falsely implicated. All the four cases, that is to say, the two criminal proceedings and the two maintenance cases having been filed before the self-same Magistrate, the learned Magistrate ought not to have overlooked the gross discrepancies in the averments in between the two sets of cases-namely Cr. Case No. 156 of 1995 and M. R. Case No. 66 of 1995 on one side and C. R. Case No. 208 of 1995 and Mr. Case No. 93 of 1995 on the other. The learned Magistrate, in taking cognizance, issuing process and fixing a date for commitment of the impugned proceeding (C. R. Case No. 208 of 1995) to Sessions, acted illegally as he did not apply his mind in doing so. The orders dated 4. 1. 96 and 9. 1. 97 passed by the learned Magistrate are bad and illegal and as such, the impugned proceeding is liable to be quashed. The orders dated 4. 1. 96 and 9. 1. 97 passed by the learned Magistrate are bad and illegal and as such, the impugned proceeding is liable to be quashed. ( 11 ) AT the very outset, a preliminary objection was raised on behalf of the opposite party No. 2 as to the maintainability of the present revisional application on the ground that the present petitioner had earlier filed another revisional application being C. R. R. 1972 of 1996 of this court raising unsuccessfully the question of quashing of this particular proceeding. ( 12 ) IN order to deal with this objection the record of C. R. R. 1972 of 1996 was called for and was placed before this court. The said record would bring out the following facts. ( 13 ) THE earlier revisional application was filed by the accused Nos. 1 to 6 of the impugned proceeding (C. R. 208 of 1995 ). The principal challenge in the said revisional application was thrown against the order dated 22. 5. 96 whereby the learned Magistrate issued warrant of arrest against the said petitioners on a finding on the basis of the process server's report, that they had refused to accept the summons. Of course, the said revisional application was filed not only for setting aside of the said order dated 22. 5. 96 but also for quashing of the impugned proceeding itself on the ground that the very initiation of this proceeding and the issuance of summons was a product of manoeuvre and manipulation at the instance of the complainant opposite party No. 2 and was bad and illegal. In support of the prayer for quashing of the criminal proceeding, it was also alleged in that revisional application that the facts and circumstances narrated in the petition of complaint which gave rise to the impugned proceeding did not prima facie establish the ingredients of the offences complained of. ( 14 ) THE order dated 22. 7. 96 whereby Justice A. B. Mukherjee disposed of the earlier revisional application (C. R. R. 1972/96) goes to show that His Lordship directed the warrant of arrest, that was issued against the petitioners of that revision case on the basis of the order dated 22. 5. 96. to remain stayed for certain period on condition of the petitioners surrendering in the court below within the said period. 5. 96. to remain stayed for certain period on condition of the petitioners surrendering in the court below within the said period. His Lordship also directed the execution of that warrant in accordance with law in the event of any default on the part of the petitioners in complying with the condition that was specified in that order. The order itself does not, however, explicitly make it clear if the question of quashing of the impugned proceeding was at all raised before or was examined by His Lordship. ( 15 ) MR. S. S. Roy, learned counsel appearing for the petitioner, sought to meet the preliminary objection regarding the maintainability of the present revisional application in the following manner. ( 16 ) THE order dated 22. 7. 96 passed by Justice A. B. Mukherjee in Criminal Revision 1972 of 1996 cannot operate as a bar to the maintainability of the present revisional application because it does not appear from that order that the question of illegality/quashing of the impugned criminal proceeding was at all raised or considered in the earlier revision case and as such, by the present revisional application it cannot be said that the petitioner has sought for a review or revision of the earlier order dated 22. 7. 96 passed in C. R. R. 1972 of 1996. In support of his contention that the present revisional application is quite maintainable and is not in any way affected by the fate of the previous application, Mr. Roy relied on several decisions namely AIR 1976 Supreme Court 1002; Supreme Court 1002; Superintendent and Legal Remembrancer of Legal Affairs, West Bengal v. Mohan Singh, 1992 Cri. LJ 1327, A. M. Berry v. Ravi Arora, 1996 (I) CHN 253 ; A. Bhaskaran v. State and 1996 (II) CHN 505 ; Indira v. Ajit Nain. ( 17 ) MR. Amit Talukdar, the learned counsel appearing for the opposite party No. 2, on the other hand, sought to repel the contentions of Mr. Roy regarding the maintainability of the present revisional application and made the following submissions. ( 18 ) IT was urged by Mr. Talukdar that the second revisional application was not entertainable since the exercise of power under section 482 Cr. Roy regarding the maintainability of the present revisional application and made the following submissions. ( 18 ) IT was urged by Mr. Talukdar that the second revisional application was not entertainable since the exercise of power under section 482 Cr. PC on such an application by the same party on the same ground virtually amounted to the review of the earlier order and was contrary to the spirit of section 362 of the Crpc. Mr. Talukdar also contended that there had not been any change in the circumstances of the case since after the order dated 22. 7. 96 was passed by Justice A. B. Mukherjee in the earlier revisional application and as such, none of the decisions cited by Mr. Roy in this behalf would be applicable here. Mr. Talukdar, on the other hand, relied on a decision in 1990 Supreme Court Case (Cri) 327: Simrikha v. Dolly Mukherjee. ( 19 ) IT was further contended by Mr. Talukdar that the petitioner in his present revisional application has not at all disclosed the fact that he had earlier filed another revisional application along with others challenging the legality of the impugned criminal proceeding and praying for quashing that proceeding, but did not succeed in having the proceeding quashed. Such non-disclosure of a material fact would only show that he has not come with clean hands and on this ground alone the impugned criminal proceeding is not liable to be quashed, in exercise of the power under section 482 Crpc. Reference has been made to a Supreme Court decision reported in 1995 SCC (Cri) 1110: Murlidhar v. State of U. P. and a Division Bench decision of our High Court reported in 1997 C Cr LR (Cal) 207: Sk. Murshidul Islam v. State of West Bengal. ( 20 ) DURING the hearing, on the question of maintainability/quashing of the criminal proceeding impugned in the present revisional application, Mr. S. S. Roy gave a complete go-by to the grounds specifically pleaded in both the revisional applications and raised altogether a new ground. It was urged that since the impugned proceeding (C. R. 208/1995) arose out of a complaint which was filed and taken cognizance of on 6. 6. 95, the date on which the previous proceeding (CR156/95) based on a complaint, which was filed and already taken cognizance of on 8. 5. It was urged that since the impugned proceeding (C. R. 208/1995) arose out of a complaint which was filed and taken cognizance of on 6. 6. 95, the date on which the previous proceeding (CR156/95) based on a complaint, which was filed and already taken cognizance of on 8. 5. 95, was still pending, the impugned proceeding was not legally entertainable and is liable to be quashed on that ground alone. In support of this contention, Mr. Roy relied on a Division Bench decision of our High Court reported in 1980 Crilj 482; Joy Krishan v. State. ( 21 ) SINCE this point was being raised for the first time, Mr. Roy cited a Supreme Court decision reported in 1995 Supreme Court Cases (Cri) 1111: Md. Sharif v. State of Orissa to contend that the petitioner cannot be debarred from taking such a point which is a point of law merely on the technical ground that no such specified contention was specifically raised in the memo of the revision petition. ( 22 ) ON the question of maintainability of the impugned criminal proceeding, it was argued by Mr. Talukdar that the two complaints were not based on the same set of facts. There were some omissions in disclosing certain facts constituting sessions triable offence in the earlier complaint and the complaint filed the subsequent complaint narrating all the facts in details and did not accordingly choose to proceed with her earlier complaint. In the facts and circumstances of this case, Mr. Talukdar urged that the decision reported in 1980 Cri. LJ 482 and cited by Mr. Roy can have no application here and the previous complaint could not adversely affect the maintainability of the subsequent complaint or operate as a bar to taking cognizance upon the sub-sequent complaint. ( 23 ) FINALLY, Mr. Talukdar submitted that the proper stage, if at all, for raising the question of the maintainability of the impugned criminal proceeding or legality of the order dated 9. 1. 97 may arrive after the commitment of the case to sessions at the stage when the Sessions Court would go into the question of framing of charge under section 227 Cr. PC and not at the present stage when the learned Magistrate is to commit the case to sessions under section 209 of Crpc. 1. 97 may arrive after the commitment of the case to sessions at the stage when the Sessions Court would go into the question of framing of charge under section 227 Cr. PC and not at the present stage when the learned Magistrate is to commit the case to sessions under section 209 of Crpc. Since the subsequent complaint does disclose facts, amongst others, constituting prima facie the ingredients particularly of an offence under section 307 IPC which is triable exclusively by the court of Sessions and the truth or otherwise of the allegation are to be determined during the trial and cannot be gone into at this stage, no exception could be taken to the impugned order dated 9. 1. 87 whereby the learned Magistrate fixed the date for commitment of the case to sessions. The taking of cognizance on the basis of the subsequent complaint and the order dated 4. 1. 96 whereby the learned Magistrate was pleased to issue process upon consideration of the result of examination under section 200 Cr. PC were quite legal and the question of quashing of the impugned proceeding cannot, therefore, arise. ( 24 ) MR. Sudipto Moitra, the learned Additional Public Prosecutor appearing for the State Opposite Party No. 1, virtually supported the petitioners' stand on the preliminary question raised on behalf of the opposite party No. 2 regarding the maintainability of the present revisional application because of the earlier revisional application. ( 25 ) MR. Moitra, however, assailed the maintainability of the present revision application on a different ground. He argued that the present revisional application can be characterised as a camouflage for the relief of quashing of the initial order of issuance of process dated 4. 1. 96 which was already hopelessly barred by limits of time, because in the previous revisional application, what formed the subject matter of challenge was a subsequent order dated 22. 5. 96 whereby the learned Magistrate issued warrant of arrest and not the earlier order dated 4. 1. 96 whereby the learned Magistrate initiated the process for securing the appearance of all the accused persons. ( 26 ) MR. Moitra, also fully supported the contention of Mr. Talukdar on the question of maintainability of the subsequent complaint by reason of the pendency of the earlier complaint. According to Mr. 1. 96 whereby the learned Magistrate initiated the process for securing the appearance of all the accused persons. ( 26 ) MR. Moitra, also fully supported the contention of Mr. Talukdar on the question of maintainability of the subsequent complaint by reason of the pendency of the earlier complaint. According to Mr. Moitra, the cause of action on which both the complaints were based might have been the same but the offences which it gave rise to were different and as such, the second complaint was quite maintainable during the pendency of the earlier complaint. Mr. Moitra also referred to section 26 of the General Clauses Act and submitted that the subsequent complaint was quite maintainable despite the pendency of the earlier complaint. ( 27 ) THUS, the points that arise for my consideration are as to whether the present application is maintainable and, if so whether the impugned criminal proceeding being C. R. 208 of 1995 as well as the order dated 4. 1. 96 and 9. 1. 97 passed in the said proceeding are liable to be quashed. ( 28 ) THE maintainability of the present revisional application was challenged on two grounds,-first, on the ground of the earlier revisional application being C. R. 1972 of 1976 having been disposed of by order dated 22. 7. 96 and secondly, on the ground of non-disclosure of this material fact. ( 29 ) LET me now proceed to examine the decisions cited by the parties on the question of maintainability of the present revisional application so as to find out their ratio dividend. ( 30 ) CHRONOLOGICALLY, those decisions are reported in AIR 1975 SC 1002 , 1990 Supreme Court Cases (Cri) 327, 1992 Cri. LJ. 1327, 1996 (I) CHN 253 and 1996 (II) CHN 505 . ( 31 ) IN AIR 1975 SC 1002 , the case was not one where the High Court was invited to revise or review an earlier order made by it, in exercise of its revisional jurisdiction finally, disposing of a criminal proceeding. The earlier application was an application under section 561a of the old Code (corresponding to section 482 of the present Code) to quash the criminal proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. The earlier application was an application under section 561a of the old Code (corresponding to section 482 of the present Code) to quash the criminal proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances, that a fresh application was moved before the High Court under section 561a to quash that proceeding. The question arose as to whether the High Court could, in exercise of its inherent power under section 561a, review an earlier order made by it in exercise of its appellate or revisional jurisdiction. The Supreme Court held that the High Court must exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked and since the facts and circumstances obtaining at the time of the sub-sequent application were clearly different from what they were at the time of the earlier application, it was held that the High Court was in such circumstances entitled to entertain the subsequent application and to consider whether, on the facts and circumstances then obtaining, continuance of the proceeding constituted an abuse of the process of the court or its quashing was necessary to secure the ends of justice and if, eventually, the quashing is considered necessary for the ends of justice, such quashing would not amount to review or revision under section 369 of the old Code corresponding to section 362 of the present Code. ( 32 ) IN 1990 Supreme Court Cases (Cri) 327; a case instituted on a private complaint was transferred under section 192 (2) Cr. PC for inquiry under section 202 Crpc. After examination of witnesses process was issued. The order issuing process was challenged under section 482 Cr. PC on the ground that the case was transferred without cognizance being taken and as such, the subsequent proceeding was illegal. The High Court dismissed the application on a definite finding upon perusal of the record and consideration of the report of the concerned Magistrate that the complaint was taken cognizance of. The High Court was moved once again under section 482 Cr. The High Court dismissed the application on a definite finding upon perusal of the record and consideration of the report of the concerned Magistrate that the complaint was taken cognizance of. The High Court was moved once again under section 482 Cr. PC on the ground of alleged irregularity at the transfer of proceeding alleging that a close scrutiny of the record would indicate that the case had not been taken cognizance of before transfer. The High Court accepted the plea and quashed the proceeding. Against the High Court's order quashing the proceeding, the Supreme Court was moved. It was contended by before the Supreme Court that the second application under section 482 Cr. PC was not entertainable since the exercise of power under section 482 Cr. PC on a second application by the same party on the same ground virtually amounted to the review of the earlier order and was contrary to the spirit of section 362 of the Cr. PC. The Supreme Court accepted this contention and set aside the order of the High Court holding inter alia that the inherent power of the High Court under section 482 Cr. PC is intended to prevent the abuse of the process of the court and to secure the ends of justice and that it could not be invoked to override the bar of review as expressly provided for in section 262 Cr. PC. The Supreme Court, however, made it clear that the above principle is subject to one exception which may arise due to change in the circumstances of the case. If there had been changes, the High Court could exercise its inherent power in the prevailing circumstances. But where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at a different conclusion is in effect a review. ( 33 ) IN 1992 Crilj 1327, the order of summoning accused was challenged in an application under section 482 Cr. PC and the said application was dismissed in limine sometime in 1987 even without calling for the record by passing only one line order "dismissed". At the time notice under section 251 Cr. ( 33 ) IN 1992 Crilj 1327, the order of summoning accused was challenged in an application under section 482 Cr. PC and the said application was dismissed in limine sometime in 1987 even without calling for the record by passing only one line order "dismissed". At the time notice under section 251 Cr. PC mentioning the particulars of the offences was not even served upon the accused and following the principle laid down by the Supreme Court in AIR 1975 Supreme Court 1002 to the effect that High Court must exercise its inherent power having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked, a single Bench of Delhi High Court, on being moved by a subsequent application under section 482 Cr. PC sometime in 1991, considered it inexpedient in the interest of justice to permit the prosecution to continue against the accused in the absence of a prima facie case against him and quashed the criminal prosecution. ( 34 ) IN 1996 (I) CHN 253 , four different revisional cases under section 482 Cr. PC for quashing four different criminal proceedings by one of the accused persons of the said criminal proceedings namely A. Bhaskaran formed the subject matter of the decision. Charge-sheet was submitted in one of the said four criminal proceedings which arose out of four different FIRs lodged by the Deputy General Manager (Advances) of Tamil Nadu Mercantile Bank Limited. The said for revision cases were filed for quashing the relevant proceedings on the ground of the being hit by the mischief of section 167 (5) Cr. PC as amended by West Bengal Act 24 of 1988, amongst other grounds. On behalf of the opposite parties, the maintainability of the said four revision cases was assailed before a single Bench of our High Court on the ground of dismissal of an earlier criminal revisional application filed by another accused namely Pawan Kumar Ruia. The said criminal revision was initially heard by a Division Bench of this court and following a difference of opinion on the question whether investigation should be continued against the said accused petitioner or not, the matter was referred to a three Judge Special Bench of this court which dismissed the revisional application by its decision dated 22. 11. The said criminal revision was initially heard by a Division Bench of this court and following a difference of opinion on the question whether investigation should be continued against the said accused petitioner or not, the matter was referred to a three Judge Special Bench of this court which dismissed the revisional application by its decision dated 22. 11. 94 reported in 1995 (I) CLJ 155 corresponding to 1995 C Cr L R (Cal) 1. Pawan Kumar Ruia filed a Special Leave Petition in the Supreme Court and the Supreme Court by order dated 11. 8. 95 issued a notice upon the CBI. The Petitioner namely A. Bhaskaran of the subsequent four revision cases referred to above was neither made a party in the earlier proceeding nor also was not be aware of the continuance of the said case. From the last sentence of the paragraph 10 of the aforesaid Special Bench decision reported in 1995 C Cr LR (Cal) 1, it would appear that the question of applicability of section 167 (5) as amended in West Bengal came up for consideration of the Special Bench and the Special Bench recorded its view that the said provisions were yet to be attracted in that case. This view was, however, based on the submissions made before the Bench to the effect that there had not been as yet any arrest or appearance of any accused in the case as contemplated under the said provisions. The learned single Bench, however, interpreted the aforesaid sentence as suggesting that the question of applicability of section 167 (5) Cr. PC as amended in West Bengal was not pressed at the time of argument on behalf of the petitioner of the earlier revision case before the special Bench. The learned single Bench also observed that the learned. Special Bench had no occasion to deal with the interpretation of the expression "made his appearance" appearing in section 167 (5) of Cr. PC as amended in West Bengal and proceeded to interpret the meaning of the aforesaid expression appearing in section 167 (5) Cr. PC and held that appearance through lawyer by making application before the court could be treated as "appearance" within the meaning of the relevant amended provisions of section 167 (5) Cr. PC. PC as amended in West Bengal and proceeded to interpret the meaning of the aforesaid expression appearing in section 167 (5) Cr. PC and held that appearance through lawyer by making application before the court could be treated as "appearance" within the meaning of the relevant amended provisions of section 167 (5) Cr. PC. It further held that the benefit of amended provision of section 167 (5) will be applicable to the other accused in a case by reason of appearance through lawyer by one accused by making application before the court. In such facts and circumstances of the case, the learned single Bench found that the maintainability of the subsequent revision cases filed by A. Bhaskaran was not affected by the dismissal of the earlier revision case of Pawan Ruia by the Special Bench. The most significant factor that led the learned single Bench to such a finding were that the petitioner A. Bhaskaran was not at all a party to the earlier revisional case that was dismissed by the Special Bench nor was he aware of the continuance of that case. The other significant factor that influenced the learned single Bench to come to such a finding was as if the petitioner in the earlier revision case made admissions to the effect that there had not been as yet any arrest or appearance of any accused in the case as contemplated under section 167 (5) Cr. PC which in the view of the learned Judge were admissions on matter of law which could not constitute any basis for estoppel. ( 35 ) IN 1996 (II) CHN 505 , the learned single Judge who decided the above case reported in 1996 (I) CHN 253 referred to a decision reported in (1990) 2 SCC 437 which really corresponds to 1990 Supreme Court cases (Cri) 327 which was cited on behalf of the O. P No. 2. The learned single Judge also referred to the decision of the Delhi High Court in 1992 Crilj 1327 cited on behalf of the petitioner. Following the principle laid down by the Supreme Court in 1990 (2) Supreme Court Cases 437: 1990 Supreme Court Cases (Cri) 327, the learned single Judge held that the second revisional application was maintainable since the learned Judge was of the view that there was definitely a change of circumstances after the earlier revision application was disposed of. Following the principle laid down by the Supreme Court in 1990 (2) Supreme Court Cases 437: 1990 Supreme Court Cases (Cri) 327, the learned single Judge held that the second revisional application was maintainable since the learned Judge was of the view that there was definitely a change of circumstances after the earlier revision application was disposed of. ( 36 ) THE essence of the ratio of the above decisions cited on the question of maintainability of the present revisional application, in my view, may be stated as follows. The inherent power of the High Court under section 482 Cr. PC is intended to prevent the abuse of the process of the court or to secure the ends of justice and cannot be exercised to do something which is expressly barred under the Code, such as to override the bar of review under section 362. Rejection of a prior application by the High Court under section 482 of the Cr. PC for quashing of a criminal proceeding is not a bar to entertainment of a subsequent application by the High Court under section 482 Cr. PC to quash the same proceeding in case the quashing is necessitated for securing the ends of justice or to prevent the abuse of the process of the court, by reason of change in the circumstances. The High Court must exercise its inherent power under section 482 Cr. PC, having regard to the situation prevailing at the particular point of time when that power is sought to be invoked. If there had been changes in the circumstances of the case, it would in order for the High Court to exercise its inherent power in the prevailing circumstances and pass appropriate order to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decisions has to be arrived on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at a different conclusion is in effect a review and is contrary to the spirit of section 362. Where there is no such changed circumstances and the decisions has to be arrived on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at a different conclusion is in effect a review and is contrary to the spirit of section 362. ( 37 ) IN the earlier revisional application (C. R. 1972/96), the present petitioner was one of the petitioners and it was the legality of the entire criminal proceeding (C. R. 208 of 1995) as well as the order dated 22. 5. 96 passed in that proceeding whereby the learned Magistrate was pleased to issue warrant of arrest against the petitioner formed the subject matter of challenge. In other words, the earlier revisional application was filed for quashing both the criminal proceeding and the said order dated 22. 5. 96. Cognizance was taken in the impugned proceeding as far back as on 6. 6. 95, the date on which the petition of complaint was placed before the Magistrate. The Magistrate took time in recording the statements of the complainant and the witnesses on oath under section 200 Cr. PC and after completing such examination on 4. 1. 96, was pleased to issue summons against the petitioners under sections 498a/307 read with section 34 of IPC, by its order dated 4. 1. 96, on a finding that a strong prima facie case was made out. It the relief claimed in the earlier revisional application in the shape of quashing of the criminal proceeding were granted, there would have been not necessity for granting any relief that was claimed in the shape of quashing of the order dated 22. 5. 96 whereby warrant of arrest was issued on the ground of refusal to accept the summons. By order dated 22. 7. 96, by which the earlier revisional application was disposed of, the criminal proceeding instead of being quashed, was allowed to continue. The impugned order dated 22. 5. 96 was also not quashed. Only the execution of the warrant of arrest that was issued by virtue of that order was allowed to remain stayed for a limited period on a condition that the petitioners would have to surrender before the court below during the said period. The impugned order dated 22. 5. 96 was also not quashed. Only the execution of the warrant of arrest that was issued by virtue of that order was allowed to remain stayed for a limited period on a condition that the petitioners would have to surrender before the court below during the said period. The learned Judge also made it clear that in the event of failure of the petitioners to surrender within the period fixed by that order, the warrant of arrest issued by the lower court would be executed in accordance with law. The order dated 22. 7. 96 does not, however, ex facie indicate as to whether the question of quashing of the proceeding was actually canvassed before the court or was considered by the court. Now, the earlier revisional application was filed under section 397, 401 and 482 Cr. PC invoking both the revisional and the inherent powers of the High Court to be exercised in seeking the reliefs prayed for. When such an application was taken cognizance of by the High Court, the High Court was supposed to examine the legality, correctness, propriety of orders that were so far recorded or passed by the lower court in the impugned proceeding as also the regularity of that proceeding before the lower court and to pass appropriate orders as may be necessary to prevent the abuse of process of court or otherwise to secure the ends of justice. When the court by its order date 22. 7. 96 simply stayed the execution of the warrant of arrest that was ordered to be issued in terms of order dated 22. 5. 96 passed in the criminal proceeding and wanted the petitioners to surrender before the lower court, it would clearly imply that the court did not at least find any illegality in the matter of taking cognizance or issuance of summons at the initial stage or consider the continuation of the criminal proceeding to be an abuse of the process of the court or think it fit to quash the proceeding in order to secure the ends of justice. In the circumstances, the High Court by its order dated 22. 7. In the circumstances, the High Court by its order dated 22. 7. 96 whereby it finally disposed of the earlier revisional application must be deemed to have refused to interfere with the cognizance, issuance of summons and continuation of the criminal proceeding in the facts and circumstances obtaining at that point of time. After the passing of that order, I do not find any real change in the circumstances of this case. The mere fact that the petitioner has chosen to challenge in this revisional case the legality of two other orders, namely, one dated 4. 1. 96 whereby the summons was ordered to be issued long before the order dated 22. 5. 96 whereby the warrant was ordered to be issued and the subsequent order dated 9. 1. 97 whereby the learned Magistrate recorded the factum of service of the copies of the documents under section 208 Cr. PC upon the accused persons, transferred the case to his personal file and fixed a date for appearance of the accused persons and also for the commitment of the case to sessions, cannot, in my view, be deemed to constitute a change in the circumstances of the case. The order dated 4. 1. 96 was not at all assailed in the earlier revision application and incorporation of that order in the present revisional application as one of the subject matter of challenge when time prescribed for making the challenge in exercise of the revisional jurisdiction had already run out cannot but be characterised as a camouflage as suggested by the learned Additional Public Prosecutor. The order dated 9. 1. 97 was a sequel to the order dated 4. 1. 96 whereby the learned Magistrate had already recorded his opinion that a strong prima facie case of sessions triable offence had already been made out against the petitioner. As such, the learned Magistrate had no other option than to commit the case to Sessions. It cannot be argued that the order dated 9. 1. 97 constitutes a change in the circumstances so as to entitle this court to exercise its inherent jurisdiction in order to entertain the present revisional application. Accordingly, I am to hold that the present revisional application is not maintainable by reason of the fact that there has not been any change in the circumstances since after the earlier revisional application was disposed of on 22. 7. 96. Accordingly, I am to hold that the present revisional application is not maintainable by reason of the fact that there has not been any change in the circumstances since after the earlier revisional application was disposed of on 22. 7. 96. ( 38 ) I now come to the other ground that was urged on behalf of the opposite party No. 2 in assailing the maintainability of the present revisional application. In this connexion, Mr. Talukdar referred to two decisions. ( 39 ) IN 1955 Supreme Court Cases (Cri) 1110, an order was obtained from the High Court by filing a petition under section 482 Cr. PC without disclosing the fact that the earlier revision petition filed under section 397, 401 had been rejected by the High Court. The factum of filing of an earlier petition and rejection thereof was considered by the Supreme Court to be an important and material fact and the Supreme Court strongly disapproved of its non-disclosure and set aside the relevant order. ( 40 ) IN 1997 C Cr LR (Cal) 207, a Division Bench of our High Court observed that it is one of the cardinal principles of justice that one who approaches the court inviting the extraordinary jurisdiction to quash its proceeding in exercise of its inherent power must come with clean hands and make a full disclosure of all the relevant facts and circumstances associated with the matter so that the court may dispassionately judge that the order sought for would not itself defeat the ends of justice or lead to an abuse of the process of the court contrary to the purpose for which this inherent power of the court exists. The Division Bench considered non-disclosure of full facts to be a good ground for recalling the interim order which was obtained without disclosing the relevant facts. ( 41 ) HERE also the petitioner did not at all disclose in the memo of the present revisional application the fact that he was party to an earlier revisional application that was filed for quashing of this very criminal proceeding for which the present revisional application has really been filed or as to how that earlier revisional application was decided and disposed of. This important and material fact was brought to my notice only by the opposite party No. 2 while raising a preliminary objection as to the maintainability of the present revisional application. In the facts and circumstances, I must say that the petitioner has not come with clean hand and as such, cannot hope to invite this court to invoke this court's inherent jurisdiction under section 482 Cr. PC. ( 42 ) THUS in any view of the matter the present case would not be a fit and proper case for invoking the inherent jurisdiction of this court. ( 43 ) I now proceed to deal with the question that was raised on behalf of the petitioner with regard to the maintainability of the impugned criminal proceeding, at the time of hearing of this revisional application, assuming that the present revisional application is maintainable and is not otherwise barred. ( 44 ) THE maintainability of the impugned proceeding (C. R. 208 of 1995) was challenged only on the ground of pendency of the earlier proceeding (C. R. 156 of 1995 ). This ground was, however, not specifically pleaded in the memo of the revisional application. But then, on behalf of the opposite parties no objection was raised in this regard and in view of the Supreme Court decision reported in 1995 Supreme Court Cases (Cri) 1111: M. Shariff v. State of Orissa, it is clear that the petitioner cannot be debarred from raising this ground at the time of the hearing of this revisional application only on the ground that it was not specifically pleaded in the memo of the revisional application. ( 45 ) THE previous proceeding (C. R. 156 of 1995) arose out of a complaint filed by the opposite party No. 2 on 8. 5. 95 alleging facts constituting an offence punishable under section 498a of IPC. The complainant was present with his three witnesses and the learned Magistrate deferred the examination presumably under section 200 Cr. PC implying that he did take cognizance upon that complaint on 8. 5. 95, the date on which it was filed. On the adjourned date that is 5. 6. 95. the complainant filed a petition praying for time and time was allowed by the learned Magistrate till 5. 7. 95 for recording the statements under section 200 Cr. PC on the following date, that is 6. 6. 5. 95, the date on which it was filed. On the adjourned date that is 5. 6. 95. the complainant filed a petition praying for time and time was allowed by the learned Magistrate till 5. 7. 95 for recording the statements under section 200 Cr. PC on the following date, that is 6. 6. 95, the opposite party No. 2 filed the second complaint registered as CR 208 of 1995. In this complaint, in addition to the facts already pleaded in the earlier complaint, the opposite party No. 2 pleaded some new facts constituting the sessions triable offence under section 307 IPC. The complainant was present even on the date of filing of the second complaint with his witnesses and the learned Magistrate deferred their examination under section 200 Cr. PC suggesting clearly that he also took cognizance on the second complaint on 6. 6. 95, the date on which it was filed. Within a few days of the filing of the second complaint, the complainant made a prayer on 14. 6. 95 for the record of the earlier complaint to be put up. She filed a petition on that date praying for dismissal of the earlier complaint alleging that she did not want to proceed with that complaint on the grounds stated in the petition. Even though the said petition is not before us, it is only reasonable to infer that since the second complaint disclosed not only the facts already pleaded in the earlier complaint but also some new facts which constitute some new offence namely a sessions triable offence, the complainant was interested to proceed only with the second complaint and not the earlier one. Now, this petition for non-prosecution was filed in the earlier proceeding on a date on which the presiding officer of the court was absent and some other Magistrate was in charge of that court. That Magistrate in charge however directed that application to be put up before the regular presiding officer. But ultimately that petition was not actually placed before the presiding officer and the presiding officer proceeded with the earlier complaint in ignorance of the fact that the complainant had already filed an application showing her disinterestedness in prosecuting that complaint. It was apparently pending on 6. 6. 95 on which the subsequent complaint was filed and taken cognizance of. In 1980 Cri. It was apparently pending on 6. 6. 95 on which the subsequent complaint was filed and taken cognizance of. In 1980 Cri. LJ 482, a Division Bench of our High Court held that when a first complaint is not dismissed under section 203 Cr. PC and is pending and alive, a second complaint on the selfsame facts is not entertainable. What happened in that case was that a complaint filed before a Magistrate was directed by the Magistrate to be investigated by the police under section 155 (3) Crpc. That direction of the Magistrate was not complied with and the police did not make any investigation on the plea that they had no jurisdiction because the incident had taken place beyond the territorial limits of the concerned police station. In such circumstances, after a few days, the complainant filed another petition of complaint whereupon the Magistrate took cognizance, examined the witnesses and passed an order of commitment. The Division Bench held that when the first complaint was filed and the Magistrate took cognizance, he had no competence to entertain the second one. Accordingly, Mr. S. S. Ray relies on this decision in support of his contention that the second complaint was not legally entertainable in view of the pendency of the earlier complaint. Mr. Talukdar draws my attention to paragraph 9 of the reported decision wherefrom it will appear that the Division Bench referred to a decision of the Supreme Court in the case of Bindeswari Singh v. Kali Singh reported in 1978 Crilj 187 and the observation of Justice Fajal Ali appearing in that decision to the effect that the second complaint lies only when there are some new facts or even on the previous facts if a special case is made out. In view of the fact that there are some new facts in the subsequent complaint, the decision reported in 1980 Cri LJ 482 can be of no help to the petitioner in challenging the maintainability of the second complaint. The facts and circumstances obtaining in the case before the Division Bench are quite different from the facts and circumstances with which we are concerned here. In the circumstances, I have no hesitation to negative the contention that the second complaint was not legally entertainable in view of the earlier complaint. The facts and circumstances obtaining in the case before the Division Bench are quite different from the facts and circumstances with which we are concerned here. In the circumstances, I have no hesitation to negative the contention that the second complaint was not legally entertainable in view of the earlier complaint. ( 46 ) BEFORE I conclude, I would like to deal with the contention raised by Mr. Moitra that the first complaint cannot be a bar to the maintainability of the second complaint in view of section 26 of the General Clauses Act. section 26 of the General Clauses Act relates to offences punishable under two or more enactments and incorporated two propositions of law: namely (i) where an act constitutes an offences under two or more enactments the prosecution can be under any of them and (ii) the accused cannot be punished twice for the same offence. The multiplicity of penal enactments leads to the multiplicity of offences. Here both the complaints disclose offences under the same enactment namely IPC. In the facts and circumstances of the case, it is not understood how section 26 of the General Clauses Act can be pressed into service as suggested by Mr. Moitra. ( 47 ) IN view of my findings and discussions recorded above, it would necessarily follow that there is no case for any interference with the impugned criminal proceeding in exercise of this court's jurisdiction. In the result, the revisional application fails and is hereby accordingly dismissed. Application dismissed.