Fakhruddin and Others vs Smt. Samshul Nisha and Another

M. Murtaza Husain, J.—This petition u/s 482 Code of Criminal Procedure has been filed for quashing the proceedings on a complaint, dated 23-6-78 (Annexvre 2) filed by Smt. Shamshul Nisa, opposite party No. 1, against the twelve Petitioners for offences under Sections 452, 506, 307, 147 and 148 IPC. It is not disputed that two earlier complaints with respect to the same occurrence were filed by the complainant against the Petitioners for prosecution on 23-11-1977 and 19-11-1978 respectively. The complaint which was dismissed on 19-11-1978 was filed on 30-11-1977. It is not known when the first complaint was filed which was dismissed on 23-11-1977. Similarly the stage at which the earlier complaint was dismissed on 23-11-1977 is not known but the certified copy of the learned Magistrate''s order, dated 19-11-1978, which has been filed through a supplementary affidavit, shows that the second complaint was dismissed for complainant''s default to appear in court till noon. There is however, no dispute that the present complaint pending against the Petitioners is the third complaint on the same facts.

The learned Counsel for the Petitioners has urged that the story set up in the complaint is inherently improbable as Fakhruddin, Petitioner No. 1, a Haji and an old man having grand children, is said to be taken for having sexual indulgence with the complainant and her daughters and when he failed to achieve his purpose, all the Petitioners which include young unmarried girls of Fakhruddin''s family are said to have raided complainant''s house in order to beat her. There can be no doubt about the fact that this story is highly improbable. Apart from this inherent improbability in the complainant''s version of the occurrence, the learned Counsel for the Petitioners has contended that the present complaint is not maintainable because it has been filed without making out any special case for its institution after the dismissal of the two earlier complaints. This contention also has force.

The Supreme Court has laid down in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, , that there is nothing in law which prohibits the entertainment of a second complaiant on the same allegations when a previous complaint has been dismissed u/s 203 Code of Criminal Procedure, but as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate u/s 204(1) Code of Criminal Procedure exceptional circumstances must exist for the entertainment of a second complaint on the same allegations, in other words, there must be good reasons why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint when a previous complaint on the same allegations was dismissed u/s 203 Code of Criminal Procedure. While explaining "exceptional circumstances" and "sufficient ground for proceeding," it was observed that where the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint or if it is was manifestly absurd, unjust or foolish, or where new facts, which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been advanced, a complaint on the same facts may be entertained and proceeded with.

This case was followed in Bindeshwari Prasad Singh Vs. Kali Singh, , wherein it has been reiterated that a second complaint can lie only on new facts or even on previous facts only If a special case is made out. The two subsequent complaints filed by opposite party No. 1 have been annexed to this petition and their averments show that no special case was made out by the complainant for filing the second and the third complaint and the same have been filed as a matter of course which could not be done in view of the observations of the Supreme Court. In the second complaint (Annexure 1) there were twenty-four accused. In the third one, which is Annexure 2, there are only twelve and out of them two ladies, namely, Smt. Habibun and Smt. Rizwana did not figure as accused in the earlier complaint, Annexure I. This fact also shows that the third complaint, on the basis of which the present proceedings are going on against the Petitioners is nothing but frivolous. The said complaint having been filed after the dismissal of the first two complaints on the same facts and without making out a special case, the learned Magistrate was not justified in entertaining it, or proceeding with it. The continuance of proceedings against the Petitioner on the basis of such a complaint will certainly amount to an abuse of the process of court.

I, therefore, allow this petition and quash the proceedings going on against the Petitioners in the Court of the Magistrate concerned on the basis of complaint (Annexure 2). The said complaint case shall stand consigned to record.