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2007 DIGILAW 178 (CAL)

SAMAR MONDAL v. STATE OF WEST BENGAL

2007-03-14

SADHAN KUMAR GUPTA

body2007
( 1 ) LEARNED Advocate for the petitioner, learned Advocate for the opposite party/complainant and the learned Advocate for the State are present. ( 2 ) HEARD the learned Advocates for all the sides so far as the revisional applications a. re concerned. It appears that G. R. Case No. 326 of 2006 arising out of Arambagh P. S. Case No. 132 of 2006 dated 30. 7. 2006 was started on the basis of a petition of complaint filed before the learned Magistrate by the opposite party No. 2. Further continuation of the said case has been challenged in these two revisional applications by the petitioners claiming therein that the de facto complainant/opposite party No. 2 practiced fraud on the Court by way of suppressing the fact that on earlier occasion one petition of complainant on the self-same ground was filed and that it was pending in the Court of the learned Magistrate for recording of the statements of the witnesses as per provisions of Section 200, Cr. P. C. ( 3 ) THE learned Advocate for the opposite party No. 2/complainant submits that there is no bar for the complainant to file a subsequent complaint praying for sending the same to the police for investigation as provided under section 156 (3), Cr. P. C. According to him, the earlier complaint was dismissed for non-prosecution and as such, the Police Case which was started on the basis of the second complaint should proceed in accordance with law and so the prayer for quashing should be rejected. ( 4 ) LEARNED Advocate for the State submitted that as it is palpably clear that the opposite party No. 2/complainant practiced fraud upon the Court by suppressing the fact that the earlier compliant case was very much in existence when the direction for investigation by the Police was passed so the G. R. Case, which was started on the basis of such complaint, should immediately be quashed. ( 5 ) I have taken into consideration the submissions of the learned advocates for all the sides. It is the admitted position that C. R. No. 68 of 2006 was filed before the learned Additional Chief Judicial Magistrate, Arambagh on 25. 7. 2006. ( 5 ) I have taken into consideration the submissions of the learned advocates for all the sides. It is the admitted position that C. R. No. 68 of 2006 was filed before the learned Additional Chief Judicial Magistrate, Arambagh on 25. 7. 2006. It appears from the order of the learned Magistrate that on that day he did not allow the prayer for sending the compliant to the police for investigation under Section 156 (3), Cr. P. C. and in stead the learned Magistrate was pleased to take cognizance himself and fixed 3. 8. 2006 for examination of the witnesses under Section 200, Cr. P. C. It further appears from the information slip that a second compliant was filed by the selfsame complainant over the self-same incident before the learned Magistrate on 27. 7. 2006. It appears from the copy of the F. I. R. , which was started on the basis of this second complaint, that same was sent to the P. S. by the learned A. C. J. M. , Arambagh on 28. 7. 2006 and on the basis of that Arambagh P. S. case No. 132 of 2006 dated 30. 7. 2006 was started. So, it appears that when the second compliant over the selfsame incident was sent to the P. S. for investigation, at that time the earlier complaint was very much in existence and it was pending before the learned magistrate. It further appears from the order dated 3. 8. 2006 that before the learned Magistrate, the learned Advocate for the opposite party/complainant, who incidentally also filed the second complaint submitted before the learned magistrate that his client did not contract with him. As such, the learned magistrate was pleased to dismiss the first complaint. So apparently, it appears that the complainant/o. P. No. 2 practiced fraud with the Court by way of misleading the said Court in sending the petition of complaint to the P. S. for investigation although the earlier compliant case was very much in existence. It is shocking that the learned Advocate, who appeared before the learned magistrate on behalf of the complainant, also supported the cause of his client ignoring the interest of justice. Be that as it may, it appears that when the second complaint was sent to the P. S. for investigation under Section 156 (3), cr. It is shocking that the learned Advocate, who appeared before the learned magistrate on behalf of the complainant, also supported the cause of his client ignoring the interest of justice. Be that as it may, it appears that when the second complaint was sent to the P. S. for investigation under Section 156 (3), cr. P. C. at that time, the first complaint was very much in existence and as such it must be said that the complainant/opposite party No. 2 obtained the said order from the learned Magistrate by way of suppressing the truth and also by way of practicing fraud. This attitude of the complainant/opposite party no. 2 cannot be supported and he must suffer consequence for that. It is the settled position that when one complaint case is pending, then over the self -. same incident another complaint cannot be filed. In this respect, the learned advocate for the petitioner cited decision reported in (2006)1 C Cr LR (Cal)177, Tajmul Hossain Shah v. State of West Bengal. I have considered the said decision as well as the factual aspect of the case and I have got no hesitation to hold that the police case which has been started on the basis of practicing fraud upon the Court, should not be allowed to be continued any further and to my mind, it is a fit case where the prayer for quashing should be allowed. ( 6 ) IN the result, both the revisional applications are allowed on contest. The proceeding of G. R. Case No. 326 of 2006 of 2006 arising out of Arambagh p. S. case No. 132 of 2006, as pending in the Court of the learned Additional chief Judicial Magistrate, Arambagh is quashed and the accused persons are discharged. ( 7 ) LET a copy of this order be sent to the learned Court below at once.