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2005 DIGILAW 586 (CAL)

TAJMUL HOSSAIN SHAH v. STATE OF WEST BENGAL

2005-08-31

PRAVENDU NARAYAN SINHA

body2005
Pravendu Narayan Sinha ( 1 ) THIS revisional application under Section 482 of the Code of Criminal procedure (in short Code) has been filed by the petitioner aiming at quashing of the investigation in connection with Dantan P. S. Case No. 67 dated 12. 7. 05 under Sections 363/365/366/484/465/323/506 of the Indian Penal Code (in short I. PC.) corresponding to G. R. Case No. 976/05 now pending before the learned Chief Judicial Magistrate, Paschim Medinipur at Midnapore Sadar. ( 2 ) MR. Prabir Mitra learned Advocate for the petitioners submitted that eldest son of petitioner No. 2 has been given in marriage with de facto complainant's daughter namely Samsurat Bibi. Petitioner No. 1 being another son of petitioner No. 2 developed intimacy with another daughter of de facto complainant Sk. Islauddin and name of the said daughter of de facto complainant is Samsunnar Khatoon. The petitioner No. 1 and the said daughter of de facto complainant were married without permission of the de facto complainant. The said marriage was not liked by the de facto complainant and on 4. 5. 05 he along with some others came to the house of petitioners and forcibly took away Samsunnar Bibi to unknown destination. Petitioner No. 1 filed a complaint against de facto complainant and others in the Court of the learned Judicial Magistrate at Dantan which was registered as Case No. C. R. 21/05. Petitioner No. 1 also prayed for search warrant under Section 97 of the Code praying for recovery of his wife Samsunnar Bibi. The learned magistrate by his order dated 8. 6. 05 was pleased to take cognizance of offence on the basis of complaint and also issued search warrant for the recovery of wife of petitioner No. 1 and in pursuant to the said search warrant the wife of petitioner No. 1 was recovered from the house of de facto complainant. The de facto complainant Islauddin filed a complaint against the petitioners before the learned Judicial Magistrate. Dantan which was registered as Case No. C. R. 18/05 under Sections 361 / 363 of the I. P. C. and the learned Magistrate by order dated 4. 5. 05 has issued process against the petitioners. The de facto complainant filed second complaint before the same learned Magistrate at Dantan over self same fact on 27. 6. Dantan which was registered as Case No. C. R. 18/05 under Sections 361 / 363 of the I. P. C. and the learned Magistrate by order dated 4. 5. 05 has issued process against the petitioners. The de facto complainant filed second complaint before the same learned Magistrate at Dantan over self same fact on 27. 6. 05 which was registered as Case No. C. R. 27/05 under Sections 363/ 365/ 366/ 323/ 448/ 465/ 506/ 34 of the I. P. C. and the learned Magistrate by order dated 27. 6. 05 has been pleased to take cognizance and fixed a date for examination of complainant and his witnesses under Section 200 of the Code. ( 3 ) MR. Mitra further submitted that the learned Magistrate by his order dated 4. 5. 05 rejected prayer of the de facto complainant in C. R. No. 18/05 for issue of search warrant for the recovery of his daughter. The de facto complainant was not satisfied even after filing two complaints against them and was determined to put them behind the bar. In order to fulfil his aim, the de facto complainant filed the third complaint and this time not before the learned judicial Magistrate, Dantan but, he filed the complaint before the learned Chief judicial Magistrate (CJM), Paschim Medinipur at Midnapore and prayed for direction for investigation under Section 156 (3) of the Code and the learned cjm sent the said complaint to O. C. , Dantan P. S. for investigation under Section 156 (3) of the Code treating the complaint as First Information Report (FIR ). The third complaint filed by the de facto complainant giving rise to Dantan RS. Case No. 67 dated 12. 7. 05 (G. R. Case No. 976/05) is also on the basis of same factual matrix and same incident dated 2. 5. 05 concerning which the de facto complainant Sk. Islauddin filed two complaints earlier namely, C. R. No. 18/05 and C. R. No. 27/05. The learned Magistrate at Dantan has taken cognizance of offence over the two earlier complaints filed by the de facto complainant and issued process against them in one complaint and another complaint is pending for initial ejahar. ( 4 ) MR. Mitra submitted that over self same matter and concerning same incident filing of third complaint and directing investigation by police amounts to abuse of process of Court. ( 4 ) MR. Mitra submitted that over self same matter and concerning same incident filing of third complaint and directing investigation by police amounts to abuse of process of Court. In earlier two complaints filed by Sk. Islauddin in which process have been issued against them, the date of incident was same and the factual matrix is same. There must be limit of filing complaint or FIR by a person relating to same incident and filing of complaint one after another is illegal and is abuse of the process of Court. An accused cannot be vexed twice or more than that over self same incident. Accordingly, the criminal proceeding being G. R. Case No. 976/05 which arose out of Dantan RS. Case No. 67 dated 12. 7. 05 should be quashed. In support of his contention Mr. Mitra cited the decisions in Pramatha Nath Talukdarv. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 , Chandrapal Singh v. Maharaj Singh reported in AIR 1982 SC 1238 and Jatinder Singh v. Ranjit Kaur reported in AIR 2001 SC 784 : 2001 C cr LR ( SC) 172. ( 5 ) MR. R. S. Chattopadhyay, learned advocate appearing for the State of West Bengal submitted that each complaint should be treated on its own merits. The present complaint which was directed to be treated as FIR and on the basis of which Dantan RS. Case No. 67 dated 12. 7. 05 was started contains serious allegations against the petitioners and others. The investigation is at its threshold and at this stage this Court should not pass any order to thwart the investigation. There is no ground at all for quashing the above stated criminal proceeding. The bail prayer of the petitioners were rejected by a Division Bench of this Court and it establishes that there is prima fac. ie case against the petitioners. Accordingly, the revisional application should be dismissed. ( 6 ) AFTER hearing the submissions of the learned Advocates of the parties and going through the materials on record, I find that the opposite party no. 2 in all lodged three complaints against the petitioners - out of which two complaints were filed before the learned Judicial Magistrate at Dantan which have been registered as C. R. Case No. 18/05 and C. R. Case No. 27/05. 2 in all lodged three complaints against the petitioners - out of which two complaints were filed before the learned Judicial Magistrate at Dantan which have been registered as C. R. Case No. 18/05 and C. R. Case No. 27/05. The third complaint has been filed in the Court of the learned Chief Judicial magistrate with a prayer for sending the complaint to O. C. , Dantan P. S. for investigation under Section 156 (3) of the Code treating the complaint as FIR. In the complaint being C. R. No. 27/05 he also prayed for sending the complaint to O. C. , Dantan P. S. for investigation under Section 156 (3) of the Code treating the complaint as FIR. The learned Judicial Magistrate, Dantan in his order dated 27. 6. 05 observed that there is no material tor sending the same to I. C. , dantan P. S. for investigation and took cognizance of offence. The complainant opposite party No. 2 thereafter did not attend the Court of the learned Judicial magistrate and he straightway approached the Court of the learned CJM at midnapore Sadar and filed a fresh complaint being the third complaint against accused petitioners with a prayer to send it for investigation under Section 156 (3) of the Code. ( 7 ) THE learned CJM allowed the prayer and, in terms of such direction after receiving the complaint at the P. S. , the Dantan P. S. Case No. 67 dated 12. 7. 05 has been started against the petitioners. In the third complaint the opposite party No. 2, the de facto complainant did not mention at all that previously he filed two complaints relating to same incident before the learned judicial Magistrate at Dantan. it is manifestly clear that by suppressing material fact the de facto complainant approached the Court of the learned CJM at midnapore and misled the Court to pass an order for sending the complaint to dantan P. S. for investigation. Had it been disclosed in the complaint or FIR that over self same incident dated 2. 5. 05 relating to taking away of daughter of the complainant by the petitioners he earlier lodged two complaints against the petitioners in the Court of the learned Judicial Magistrate at Dantan, the learned cjm would not have passed the order directing investigation under Section 156 (3) of the Code. 5. 05 relating to taking away of daughter of the complainant by the petitioners he earlier lodged two complaints against the petitioners in the Court of the learned Judicial Magistrate at Dantan, the learned cjm would not have passed the order directing investigation under Section 156 (3) of the Code. ( 8 ) THE decisions cited by the learned Advocates for the petitioners are apposite in this matter. There must be limit of filing complaint over self same incident particularly when on the basis of earlier complaints, action has been taken by the learned Magistrate at Dantan. There is nothing before this court to show that the earlier complaints filed by the de facto complainant being C. R. No. 18/05 and C. R. No. 27/05 were dismissed by the learned magistrate. On the other hand, it is evident that in C. R. No. 18/05 learned magistrate issued process under Section 363 of the I. P. C. against the petitioners. In C. R. No. 27/05 the learned Magistrate took cognizance of offence and fixed date for recording statement of witnesses under Section 200 of the Code. The de facto complainant instead of appearing in that Court for examination under section 200 of the Code went to the Court of learned CJM at Midnapore and filed the third complaint, and that too, by suppressing the fact that previously twice on same allegations relating to same incident of same date he filed complaints in the Court of learned Judicial Magistrate, Dantan. The Supreme court and this Court have deprecated filing of consecutive complaints over self same incident. ( 9 ) REJECTION of prayer for bail cannot be a ground for non-interference by this Court in this revisional application. Scope and object of Section 438 of the Code is limited and the Court will see materials in case diary and nothing more. While exercising power under Section 482 of the Code the High Court exercises more power and can go further deep into the matter and, if the High court finds that over self same incident the complainant has filed consecutive complainants the High Court can quash the subsequent complaint. Considering the entire matter this Court finds that there was no ground at all for filing third complaint by the de facto complainant opposite party when the learned magistrate at Dantan has already taken action on the basis of his two earlier complaints. Considering the entire matter this Court finds that there was no ground at all for filing third complaint by the de facto complainant opposite party when the learned magistrate at Dantan has already taken action on the basis of his two earlier complaints. Filing of the third complaint over self same incident amounts to abuse of the process of Court. Continuation of the third complaint, i. e. the present criminal proceeding amounts to miscarriage of justice and abuse of process of Court. This is a fit case where this Court should exercise its inherent jurisdiction under the Code to quash the criminal proceeding. Accordingly, the criminal proceeding being G. R. Case No. 976/05 arising out of Dantan PS. Case No. 67 dated 12. 7. 05 now pending before the learned Chief Judicial magistrate, Paschim Medinipur at Midnapore Sadar is hereby quashed. ( 10 ) SINCE the proceeding has been quashed, the accused petitioners cannot be confined to jail and they are to be released. Learned Chief Judicial magistrate will forthwith pass necessary order. ( 11 ) CRIMINAL Department is directed to send a copy of this order to the learned Chief Judicial Magistrate, Paschim Medinipur at Midnapore forthwith by special messenger at the cost of the petitioners to be deposited by Thursday.