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2005 DIGILAW 572 (CAL)

ABDUS SAMIM @ PINTU v. STATE OF WEST BENGAL

2005-08-26

SAILENDRA PRASAD TALUKDAR

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Sailendra Prasad Talukdar ( 1 ) THE present case arises out of an application under Sections 397/401/482 of the Code of Criminal Procedure, 1973. ( 2 ) IT relates to a prayer for quashing the case being G. R. No. 275 of 2003 (Arambagh Police Station F. I. R. No. 145 dated 23. 7. 2003 under Sections 147/323/325/498a/302/304b/120b/34 of the Indian Penal Code ). ( 3 ) THE backdrop of the present case may briefly be stated as follows :-On 16th October, 2002 one Mansur Ahmed Middya lodged a complaint before the Sahapur Police Station, Belgaum against the petitioner No. 1, Sk. Abdus Samim. He alleged that his sister, Mumtaz Begam, was married to Sk. Abdus Samim. The couple had a daughter, named Shamima Parveen. Since marriage, his sister, Mumtaz Begam, was subjected to physical and mental torture and her husband used to threaten her by saying that he would marry for the second time. For these reasons her sister used to get upset and during her visits to the complainant's family, she used to express her frustration. The complainant and others used to persuade her to return to her husband at belgaum. On 13. 10. 2002, at about 8. 30 a. m. , the complainant got information that his sister, Mumtaz Begam, had committed suicide. He was put into terrible , shock and requested that the dead body should not be buried. On 15. 10. 2002 at about 4 p. m. the complainant reached the room where post mortem of her sister was held. He requested the Police Authorities to enquire into the matter and take steps in accordance with law as he felt that the husband of the deceased was responsible for such death. On the basis of a written complaint lodged before the Sahapur Police Station, a case being Sahapur Police Station crime No. 126/2002 dated 16. 10. 2002 under Sections 498a/306 I. PC. was started against the said Sk. Abdus Samim. He was arrested and was subsequently released on bail. After completion of investigation, charge sheet was submitted against him on 26th November, 2002 under Sections 498a/306; indian Penal Code. Long after that the present complaint was filed implicating all the family members of the in laws as well as others before the learned Court of Sub-Divisional Judicial Magistrate, Arambagh, Hooghly under sections 147/323/325/498a/302/304b/120b/34, I. PC. on 11. 11. 2002. After completion of investigation, charge sheet was submitted against him on 26th November, 2002 under Sections 498a/306; indian Penal Code. Long after that the present complaint was filed implicating all the family members of the in laws as well as others before the learned Court of Sub-Divisional Judicial Magistrate, Arambagh, Hooghly under sections 147/323/325/498a/302/304b/120b/34, I. PC. on 11. 11. 2002. In the said complaint it was alleged that his younger sister, Mumtaz Begam, was married to present petitioner No. 1. In the said marriage Den-Mohar was fixed at Rs. 11,000/- and a sum of Rs. 40,000/- was given to him in cash. Gold ornaments worth Rs. 35,000/- was also given at the time of marriage. After marriage his sister was living in the house of her husband. For some time after the marriage, her husband and others used to behave nicely with his sister. But, subsequently, there was a change in the complexion and they started making demands for more and more money and articles. As such demands were not met, the sister of the complainant was abated by all the petitioners to commit suicide. It was alleged that his sister was also subjected to physical assaults. The complainant got the information of the death of his sister on 14. 10. 2002. He went to Arambugh Police Station. Information was lodged being g. D. No. 755 dated 14. 10. 2002. He was further advised to rush to Sahapur police Station at Karnataka. The complainant alleged that all the accused persons, named in the complaint, conspired in the commission of murder of his sister and it was in pursuance to demand of dowry. ( 4 ) THE learned Sub-Divisional Judicial Magistrate referred the said complaint to the police for investigation under Section 156 (3) of the Criminal procedure Code. Arambagh Police Station Case No. 145 dated 23. 7. 2003 was stated. The case before the learned Sub-Divisional Judicial Magistrate, arambugh was filed against the petitioner Nos. 1 and 8 others for the selfsame occurrence over which complaint was lodged before the Sahapur Police station on 16. 10. 2002. It was alleged that this reflects the mala fide intention on the part of the complainant. In the initial complaint there had been no allegation of any torture or abatement against the petitioners except petitioner no. 1. 1 and 8 others for the selfsame occurrence over which complaint was lodged before the Sahapur Police station on 16. 10. 2002. It was alleged that this reflects the mala fide intention on the part of the complainant. In the initial complaint there had been no allegation of any torture or abatement against the petitioners except petitioner no. 1. The petitioner No. 1, who is husband of the alleged victim, cannot be tried twice for the self-same offence, as a case against him is already pending before the learned Court of Sub-Divisional Judicial Magistrate, Belgaum. Other petitioners are all close relatives of petitioner No. 1, except petitioners No. 8 and 9, who have no relationship whatsoever. ( 5 ) IT was submitted by the learned Counsel for the petitioner that the allegations made in the earlier complaint on the basis of which a case is now pending before the learned Court of Belgaum, Karnataka, are identical allegations on the basis of which the instant case being Arambagh Police Station f. I. R. No. 145 dated 23. 7. 2003 was started. He categorically submitted that law does not permit prosecution of a person simultaneously in two different courts for the self-same offence. ( 6 ) ON the other hand, it was submitted on behalf of the opposite party, state of West Bengal, that the instant case relates to some other persons apart from the present petitioner and no case having been initiated against the said persons, there is no reason why the present case cannot be allowed to continue. ( 7 ) ATTENTION of the Court was drawn to the judgment passed in sessions case No 15/2003 by the learned Fast Track Court-Ill, Belgaum. It was the case against the present petitioner for the offences under Sections 498a/306 of I. P. C. The learned Trial Court did not find sufficient material against the accused ia the said case. This resulted in finding him not guilty and the accused, who is petitioner No. 1 in this case, was, accordingly, acquitted. ( 8 ) THE learned Counsel for the petitioner referred to the decision in the case of I I Antony v. State of Kerala and Ors. , reported in 2001 Cr LJ 3329, with others in support of his contention that there can be no second F. I. R. in respect of the same cognizable offence or same incident or same occurrence. , reported in 2001 Cr LJ 3329, with others in support of his contention that there can be no second F. I. R. in respect of the same cognizable offence or same incident or same occurrence. ( 9 ) CAREFUL consideration of the entire materials on record and having regard to the allegations made in the two cases, as referred to earlier, over the self-same incident and occurrence, I am of the opinion that there can be hardly any justification for allowing the present case to continue. Mere fact that some other persons have also been implicated in the case does not really change the actual complexion of the incident and/or occurrence. Considering all these aspects I am of the opinion that for the best interest of justice the present case must not be allowed to proceed further. Accordingly, in exercise of this Court's power under Section 482 of the Code of Criminal Procedure and in order to prevent abuse of process of law, the present application, being C. R. R. No. 2684/2003, be allowed. The case, being G. R. No. 275/2003, now pending before the learned Court of Sub-Divisional Judicial Magistrate, Arambagh, Hooghly, be quashed. Accused persons in the said case be released from their respective bail bonds. ( 10 ) LET this copy of the judgment along with L. C. R. , if any, be sent to the learned Court of Sub-Divisional Judicial Magistrate, Arambagh, Hooghly, for information and necessary action. Later : learned Counsel for the State of West Bengal has sought for return of the Case Diary which was earlier kept with the record. The same be returned to him.