S. Talapatra, J.:— By this petition filed under Section 482 read with Section 397 of the Code of Criminal Procedure, 1973, the petitioner prays for quashing of the complaint Case No.389C/ 2008 along with the orders dated 31.10.2009 and 04.08.2011 as passed therein. 2. Learned counsel Ms. P. Talukdar, ap pearing for the petitioners submits at the out set that the complaint has been filed to abuse the process of law inasmuch as there is simi lar complaint containing identical allegation was filed by the respondent being Complaint Case No.358C/2007 as pending in the court of the learned Judicial Magistrate, Dibrugarh, under Sections 418,420/406/506/294 of IPC. Learned counsel for the petitioners, drawing my attention to the allegations as lev elled against the petitioners in the said com plaint, submits that the respondent herein is the husband of the petitioner No. 1, for his matrimonial misconduct, she was compelled to live separately at her parental house. The allegations in a nutshell against the petitioner No.1 in the said complaint case No.389C/2008 may be enumerated as under: (a) The petitioner No. 1 used to state to the respondent that the marriage that was solemnised was negotiated against her will. She was neglecting to discharge her day to day household affairs and other duties as well as she declined to prepare food for the respondent. The petitioner No. 1 used to keep the monthly salary of the respondent in her custody and used to despatch the major portion of his monthly salary to her parents at Lumding and whenever the respondent objected over such illegal transaction she used to torture him and his old aged sick mother, widow sister and other family members with ex treme cruelty. Even she created pressure upon the respondent not to maintain his old aged sick mother, widow dependent sister and other family members. The pe titioner No.1 also created tremendous pressure to have separate mess by leav ing the old aged sick mother of the respondent and the dependent widow sister at large. She was also alleged of making at tempts to drive away the old aged sick mother and the dependent widow sister of the respondent. Whenever her efforts were somehow frustrated, she used to become violent and hostile towards the respondent and other family members. Despite all these unhappy developments in the marital life, the respondent quietly tolerated hoping for a better future.
Whenever her efforts were somehow frustrated, she used to become violent and hostile towards the respondent and other family members. Despite all these unhappy developments in the marital life, the respondent quietly tolerated hoping for a better future. Ulti mately, the respondent alleged that the petitioner No. 1 used to refuse the conju gal life to the respondent as if she was not his wife. The respondent alleged that all these acts were so deliberate to drive the respondent to commit suicide so that the petitioner No. 1 can grab his entire property. At one point of time the petitioner No.1 left her matrimonial home and started living at her parents house at Lumding and whenever the respondent tried to take her back to the matrimonial home, the respon dent was not responded. (b) On several occasions the respon dent requested the parents of the petitioner No. 1 to persuade her to amend her way of life. On the contrary, the petitioner No. 1 and her father namely Sri Ranjit Kr. Kar used to demand money from the respondent, who is a Grade-III employee. The respondent tried to fulfil their demands as per his capacity just for maintaining the family peace. Within a short period of married life, the respondent got humilia tion and inhuman torture from the petition ers. The atmosphere at home was full of hostility and as such the respondent was perturbed. On 04.06.2006 at about 9.30 pm the petitioner No.1 left the marital home by taking golden ornaments and other valuable goods. She had also taken with her money and golden ornaments of the respondent's mother and started living at her parents house at Lumding. On sev eral occasions the respondent went to Lumding to bring her back but he was treated with extreme cruelty and was ulti mately driven out from his in-laws house. The parents of the petitioner No. 1 even threatened him to involve him in a false case and also posed threat to his life stat ing that they would commit his murder. Be that as it may, the petitioner No. 1 all the time refused either to come back to her matrimonial home or to return the belong ings of the respondent on the face of re peated requests made thereof.
Be that as it may, the petitioner No. 1 all the time refused either to come back to her matrimonial home or to return the belong ings of the respondent on the face of re peated requests made thereof. (c) On 14.08.2007 at about 10.00 am, the respondent requested the petitioner No. 1 to return the belongings of the re spondent over telephone but she refused to return those materials and threatened that she would file false case against him. During the exchange of words, the peti tioner No.1 used obscene words and made it clear that the petitioners had al ready filed some false cases against the respondent and his other family members. Ultimately, the respondent disclosed that he had already filed one complaint on 23.08.2007 under Sections 418/420/406/ 506/294 of IPC. 3. Ms. P. Talukdar, learned counsel ap pearing for the petitioner, taking me to the statement of the respondent recorded under Section 200 of Cr.P.C. submits that the state ment as recorded is almost a replica of the complaint petition but in that statement the allegation that, on 15.10.2008 at 10.00 am the petitioner No. 1 threatened the respondent of his life is not there. The relevant portion of the said statement runs as follows: "I went to take Ruma, she, her father and mother abused me, ill treated me and sent me back without allowing me to enter their house. I rang up Ruma to come back but she threatened me that she will murder me and scolded me in forming me that she does not consider me as her husband and till today she has not returned back. She asked me to give her divorce. Ruma's father has taken a heavy loan from someone at Lumding asked me to repay the aforesaid loan and threatened to implead me in false cases. I have submitted the list of articles in possession of Ruma along with this com plaint. I have filed this case against Ruma, her mother Smti Seema Kar and her father Sri Ranjit Kr.Kar." 4.
I have submitted the list of articles in possession of Ruma along with this com plaint. I have filed this case against Ruma, her mother Smti Seema Kar and her father Sri Ranjit Kr.Kar." 4. In support of his allegations, the respon dent before issuance of process under Sec tion 202 of Cr.P.C., adduced one witness being her dependent widow sister namely, Smti Gina Ghosh, who stated "on 14.8.2007, elder brother rang up Ruma to return back then Ruma, her mother, father abused him with words and said that if elder brother visits to take her then they will shoot him. Elder brother asked Ruma to give back the golden orna ments and return the cash of Rs.90.000/- but they refused to give and threatened to kill him upon his visit". 5. On the basis of such statements and the complaint, by order dated 31.10.2009, the learned Judicial Magistrate 1st Class, Dibrugarh, taken cognizance under Section 506 of IPC against the petitioner No.1 and his father Sri Ranjit Kr. Kar and accordingly issued summons against them. Later on, by the order dated 04.08.2011, non-bailable warrant of arrest was issued against the peti tioner Nos. 1 to 3. No cognizance was taken against the petitioner No.4 namely, Sri Rajib Kar. 6. Learned counsel for the petitioner fur ther submits that at the time of taking cogni zance, though the respondent had disclosed the pendency of a criminal case being 358C/ 2007 in the court of the learned Judicial Mag istrate 1st Class, Dibrugarh, at the time of cognizance that aspect of the matter was not considered. Learned counsel for the petitioner drawing attention of this court to the allega tions made in the said complaint case, sub mits that all these are similar allegations against the petitioners particularly in para-11, the fol lowing allegations had been slapped. "11.
Learned counsel for the petitioner drawing attention of this court to the allega tions made in the said complaint case, sub mits that all these are similar allegations against the petitioners particularly in para-11, the fol lowing allegations had been slapped. "11. That on 14.8.07 at about 10.00PM the complainant requested the accused No.1 to re turn back his belongings more fully described in the schedule here in below over telephone but she refused to return back the same making it clear that she would mis-appropriate the same by disposing of the same and threatened that she would file false case against him and his other family members if he would not Divorce her and threatened to his and in the process the other accused persons also threatened to the life of the complainant over telephone by using obscene words and made it clear that they had filed some false cases against him and his fam ily members by fabricating some false facts just to teach them a good lesion. They also threat ened to the life complainant that the belong ings of the complainant would be disposed of within a short period. Thus, the accused per sons are liable to be prosecuted u/s 418/4207 406/506/294 of the IPC." 7. On the basis of that, cognizance was taken by the learned court at Dibrugarh. Later on, the said complaint case was dismissed for non-appearance of the complainant by dis charging the petitioners herein. After dismissal, the present complaint has been filed to per petrate the harassment to the petitioners. 8. Learned counsel for the petitioners sub mits that as a whole, if the allegations are be lieved, no case can be made out under Sec tion 506 of IPC against none of the petition ers and there are no ingredients of Section 34 of IPC. In support of this contention, the learned counsel referred to the provisions of Section 506 of IPC, which is reproduced hereunder. "506.
In support of this contention, the learned counsel referred to the provisions of Section 506 of IPC, which is reproduced hereunder. "506. Punishment for criminal intimidation.-Whoever commits, the offence of criminal in timidation shall be punished with imprisonment of either description for a term which may ex tend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or griev ous hurt, or to cause the destruction of any property by fire, or to cause an offence punish able with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may ex tend to seven years, or with fine, or with both." 9. Learned counsel further submitted that there is no element of criminal intimidation as defined in Section 506 of IPC and as such cognizance as taken is perverse and the sub sequent orders issuing the process against the petitioner cannot also sustain the scrutiny of law. 10. Learned counsel appearing for the petitioners, to buttress her contention, relied on the decision of the Apex Court in State of Haryana & Ors. Vs. Bhajan Lal & Ors., as reported in 1992 Supp (1) SCC 335, wherein the Supreme Court has formulated certain guidelines while the inherent power of the court under Section 482 of Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or other wise to secure the ends of justice. The guide lines can be encapsulated as under. "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first infor mation report and other materials, any, accom panying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code ex cept under an order of a Magistrate within the purview of Section 155(2) of the Code.
(2) Where the allegations in the first infor mation report and other materials, any, accom panying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code ex cept under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not dis close the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investiga tion is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improb able on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against he accused. (6) Where there is an express legal bar en grafted in any of the provisions of the Code of the concerned Act (under which a criminal pro ceeding is instituted) to the institution and con tinuance of the proceedings and/or where there is a specific provision in the Code or the con cerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is mani festly attended with mala fide and/or where the proceeding is maliciously instituted with an ul terior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 11. In the same line, Janata Dal Vs. H.S. Chowdhary & Ors., as reported in (1992) 4 SCC 305 was also pressed into operation, wherein the Supreme Court reiterated the principles of Bhajan Lal(supra). The relevant paragraphs are profitably reproduced. "131. Section 482 which corresponds to Sec tion 561 -A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court.
The relevant paragraphs are profitably reproduced. "131. Section 482 which corresponds to Sec tion 561 -A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolx aliquid alicui concedit, concedere videturid sine quo ipsa, ess uon potest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. 132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial jus tice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power re quires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. 136. Thus, the inherent power under this section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra: (1977) 4 SCC 551 that the power is not to be restored to if there is a specific provision in the Coe for the redress of the grievance of the aggrieved party and that it should be exercised very spar ingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provi sion of the Code. Vide (1) Talab Haji Hussain v. Madhukar Purhsottam : 1958 SCR 1226 , (2) Khushi Ram v. Hashim: AIR 1959 SC 542 ; and (3) State of Orissa v. Ram Chander Agarwala: (1979) 2 SCC 305 . 137.
Vide (1) Talab Haji Hussain v. Madhukar Purhsottam : 1958 SCR 1226 , (2) Khushi Ram v. Hashim: AIR 1959 SC 542 ; and (3) State of Orissa v. Ram Chander Agarwala: (1979) 2 SCC 305 . 137. This inherent power conferred by Sec tion 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should nor mally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether fac tual or legal are of great magnitude an cannot be seen in their true perspective without suffi cient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal: 1992 Supp (1) SCC 335 to which both of us were parties have dealt with this question at length and enunciated the law list ing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it nec essary in the present case to extensively deal with the import and intendment of the powers under Sections 397,401 and 482 of the Code." 12. Learned counsel for the petitioners, while making submission on the scope and ambit of the interference under Section 482 of Cr.P.C, referred a decision in Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., as reported in (1998) 5 SCC 749 , wherein the Apex Court has etched out the principles of consideration in para-28 of the said law report, profitably the said paragraph is reproduced hereunder. "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two wit nesses to support his allegations in the com plaint to have the criminal law set into motion. The order of the magistrate summoning the ac cused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
It is not that the complainant has to bring only two wit nesses to support his allegations in the com plaint to have the criminal law set into motion. The order of the magistrate summoning the ac cused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allega tions made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complain ant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evi dence brought on record and may even himself put questions to the complainant and his wit nesses to elicit answers to find out the truthful ness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 13. Relying heavily on the Pepsi Foods Ltd.(supra), learned counsel for the petition ers submits that the learned Judicial Magis trate while taking cognizance has not applied his mind to the facts of the case and the law applicable thereto. He has failed to examine the nature of allegations as made in the com plaint and the evidence both oral and docu mentary and support thereof. As such, on the basis of insufficiency of materials he has taken the cognizance against the petitioners under Section 506 read with Section 34 of IPC. Even the learned Magistrate has not scrutinised the evidence or put questions to the complainant and his witnesses to elicit an swers to find out what was the allegations in the previous complaint (Annexure-9 to the petition). 14. On countering the contentions as raised by the learned counsel for the petitioners, Mr. P. Bora, learned counsel for the respondent, submits that on the basis of new allegations a subsequent complaint was filed and as such there is no illegality in taking cognizance against the petitioner Nos. 1,2 and 3 under Sections 506/34 of IPC.
14. On countering the contentions as raised by the learned counsel for the petitioners, Mr. P. Bora, learned counsel for the respondent, submits that on the basis of new allegations a subsequent complaint was filed and as such there is no illegality in taking cognizance against the petitioner Nos. 1,2 and 3 under Sections 506/34 of IPC. He refuted the alle gation that after the first complaint was dis missed under Section 256 of Cr.P.C., the complaint that is under challenge was filed by the respondent only to perpetrate harassment of the petitioners as alleged or otherwise. He contended that it is well settled, when the court is prima facie satisfied that the allegations con stitute an offence then it is within the jurisdic tion of the court to take cognizance and as such the impugned orders do not suffer from any illegality as alleged. Learned counsel for the respondent has taken this court to the last paragraph of the impugned complaint, wherein it has been stated that on 15.10.2008 at about 10.00 am the accused No. 1 threat ened to the life of the complainant over tele phone and thereafter all other accused per sons also threatened to the life of the com plainant over the said telephone call and made it clear that they would commit him murder if he would not withdraw the case lodged against them. He vehemently submits that the elements of Section 503 of IPC available ex facie the materials placed by the complain ant. Mr. Bora, learned counsel appearing for the respondent urged this court not to inter fere this extraordinary jurisdiction as Apex Court in State of Bihar Vs. Murad Ali Khan, as reported in (1988) 4 SCC 655, has stated that jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly and with cir cumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 15.
15. On consideration of the rival conten tions as emerged, this court has meticulously scrutinised the complaint as well as the im pugned orders and find that the complaint under challenge is virtually a replica of the previous complaint, being Complaint Case No.358C/2007 save and accept the tele phonic conversation as pointed out by the learned counsel for the respondent as has been implanted in the complaint under chal lenge is not only absurd and inherently im probable on the basis of which no prudent person can every reach just conclusion that there is sufficient grounds for proceeding against the petitioners. It comes to the court from a wholesome survey of the allegations as made in the complaint that the respondent has been filing the complaint for harassing the estranged wife and her relatives and as such the proceedings are manifestly attended with mala fide for wreaking vengeance on the pe titioners due to private and personal grudge. 16. Regarding the scope and ambit of Section 482 of Cr.P.C., the ratio of the Supreme Court in Murad Ali Khan(supra) may be of same benefit, which is profitably repro duced hereunder. "The expressions "the same offence", "sub stantially the same offence" "in effect the same offence" or "practically the same', have not done much to lessen the difficulty in applying the tests to identify the legal common denomina tors of "same offence". Friedland in "Double Jeopardy" (Oxford 1969) says at page 108: "The trouble with this approach is that it is vague and hazy and conceals the thought pro cesses of the Court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two of fences are 'substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible........" 17.
A more serious consequence is the fact that a decision in one case that two of fences are 'substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible........" 17. Apart that the law as laid down in Pepsi Foods Ltd.(supra) has acquired the standard of guiding principles so far it relates to exercise of inherent powers by the High Court under Section 482 of Cr.P.C. In Pepsi Foods Ltd.(supra), the Supreme Court has categorically stated that the Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the al legations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. While taking the cognizance of the offences as alleged in the complaint under challenge, the Magistrate miserably failed to discharge and he mechanically taken cognizance against the petitioner Nos. 1,2 and 3 though prima facie there is no material to take cognizance of offence under Section 506 read with Section 34 of IPC. 18. In Bhajan Lal(supra), while the Su preme Court approving the decision in Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre, as re ported in (1998 1 SCC 692, has expounded the law as follows: "The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage." 19.
Taking overall view of the decisions as cited above as well as of the materials as was made available to the learned Judicial Magistrate, it can be safely said that the learned Judicial Magistrate before issuing the process against the petitioner Nos. 1,2 and 3, did not consider all these aspects as enunciated in Madhavrao Jiwaji Rao Scindia(supra). As such the complaint being C.R. No.389C/2008 as well as the impugned orders dated 31.10.2009 and 04.08.2011 are hereby in terfered with and set aside. The petitioners are discharged from the said criminal proceed ings being C.R. No.389C/2008 forthwith with their sureties as well as also absolved of their liability. 20. With these observations and direction, this criminal petition stands allowed. Before parting with the records, this court thinks it appropriate to place appreciation for the learned counsel appearing for the peti tioners for her dexterity in presenting the case. _____________