In the matter of: Shirsendu Ghosh v. STATE OF WEST BENGAL
2013-08-14
ASIM KUMAR MONDAL
body2013
DigiLaw.ai
JUDGMENT : Asim Kumar Mondal, J. This is an application under Section 482 of Code of Criminal Procedure, 1973. The case of the petitioner is that marriage took place in between the opposite party No.2 and petitioner No.1 on 27th February, 2009 according to Hindu rites and customs. They lived happily for some times after marriage. On 14th April, 2010, the opposite Party No.2 deserted her husband petitioner No.1 and started to reside at her paternal house. The opposite party No.2 filed a complaint under section 156 (3) of Criminal Procedure Code on 3rd March, 2010 before the Court of Ld. Additional Chief Judicial Magistrate, Barrackpore, which was registered as Air Port Police Station case No.115 of 2010 under Sections 498A/406/323/324 of Indian Penal Code. Police submitted charge-sheet under Section 498A/406 of the Indian Penal Code on completion of investigation. The Opposite Party No.2 after lapse of period of almost five months lodged another complaint of similar nature under Section 156 (3) of Criminal Procedure Code before the Court of Ld. Additional Chief Judicial Magistrate, Barrackpore on 9.12.2010, which was registered as Airport police station case No.315 of 2010 under Sections 498A/325/34 of the Indian Penal Code. Being aggrieved and dissatisfied with the contention of the subsequent proceeding being Airport police station case No.315 of 2010 dated 11th December, 2010, under Section 498A/325/34 of the Indian Penal Code prays for quashing the criminal proceeding of Airport police station case No.315 of 2010 dated 11th December, 2010, corresponding to GR Case No.4569 of 2010 pending before Learned Additional Chief Judicial Magistrate Barrackpore, North 24-Parganas on the grounds that the allegation made in the second complaint dated 11.12.2010 do not prima facie constitute any cognizable offence or make out case against petitioner further that the opposite party No.2 filed the second complaint suppressing the filing of earlier complaint. The impugned criminal proceeding as such is not maintainable since the allegations made therein are concocted and false and with alterior motive. Ld. Advocate Mr. Nabankur Paul appears for the petitioners and submits that the entire allegations in the second complaint is baseless. At the relevant time as alleged in the second complaint that she was residing at her matrimonial home is totally false.
Ld. Advocate Mr. Nabankur Paul appears for the petitioners and submits that the entire allegations in the second complaint is baseless. At the relevant time as alleged in the second complaint that she was residing at her matrimonial home is totally false. Admittedly, the opposite party No.2 as petitioner in her first complaint lodged under Section 156 (3) of Criminal Procedure Code stated that she was driven out from the matrimonial home on 14.4.2010. In course of investigation the said complaints that police seize some articles and prepared seizer list. It is further submitted that the Ld. Advocate for the revisionist that suppressing all these facts the Opposite Party No.2 filed the second complaint under Section 156 (3) of Criminal Procedure Code alleging almost the same nature of offence committed by the present petitioners. The First Information Report of occurrences of the second complaint, has been stated, since after marriage and lastly on 1.12.2010. Ld. Advocate appearing for the petitioner/revisionist relied upon the decision of coordinate bench of this court reported in (2006)1 C Cr. L R (Cal) Tajmul Hossain Shah Vs. State of West Bengal and (2007)2 C Cr. L R (Cal) 358 Samar Mondal Vs. State of West Bengal submits that where complainant have already filed a complaint for the same incident, filing of second complaint for the said incident is nothing but abuse of process and is liable to be quashed. Ld. Advocate further submits that Court may direct that the Ld. Court below proceeds with both the cases conjointly, in order to avoid conflict of judgments. Mr. Kollol Mondal Ld. Advocate appears on behalf of the opposite party No.1 State. It is submitted that both the cases have been filed over the same-self incident is not correct. The second complaint under section 156(3) of Criminal Procedure Code was filed on 9.12.2010. The opposite party No.2 in his said complaint has specifically stated that she was driven out on 14.4.2010 and after passing same month, the accused persons that is the petitioners, requested her to come back their house and accordingly she went to recontinue her marriage life at her matrimonial home. She was again tortured on 1.12.2010. Consequence to the said incident the second complaint was filed. In view of the facts and circumstances of the two complaint cases it cannot be said that the second complaint was filed over the same self and identical incident.
She was again tortured on 1.12.2010. Consequence to the said incident the second complaint was filed. In view of the facts and circumstances of the two complaint cases it cannot be said that the second complaint was filed over the same self and identical incident. So no question of abuse of process arises. The ratio of the judgments of two coordinate benches of this court, as such is not applicable in the present case. Admittedly, the opposite party No.2 filed two complaints under section 156 (3) of the criminal procedure code against the present petitioner alleging torture upon her on two distinct dates and times. Sri Mondal appearing on behalf of the State draws my attention at paragraph 4 of the complaint, which has been registered as Airport Police Station Case No.315 of 2010 i.e. the second complaint and submits that the accused persons who are petitioners herein requested to the complainant/wife to come back home and join with them to continue her matrimonial life. Accordingly, she went back and during her stay at matrimonial home she was again tortured for which she was compelled to file another complaint under section 156 (3) of Criminal Procedure Code on 1. 12. 2010. Ld. Advocate appearing for the State submits that let the petitioner wife who is Opposite Party No.2 here in be allowed to examine herself before the Ld. Court below. It appears that the nature of alleged offences in two petitions are almost same but it is clear from the petitions that the two alleged incidents took place on two different dates and times. So, it cannot be said that the filing of the second complaint against the same accused persons alleging the same nature of offences is nothing but abuse of process. The complainant/wife should be given an opportunity to prove her allegations alleged under second complaint before the Ld. Magistrate. So, I do not find any merits in the revisional application to interfere into the matter for quashing the proceedings filed under section 156 (3) Criminal Procedure Code registered as Airport Police Station case No.315 of 2011 under sections 498A/ 325/34 Indian Penal Code. Thus, revisional application stands dismissed. Interim order if any stands vacated. Urgent Photostat certified copy of this order if applied for be given to the parties on priority basis.