M. M. Husain, J. - (1.) THIS petition under Section 482 CrPC has been filed for quashing the proceedings of a complaint dated June 23, 1978 (Annexure 2) filed by Smt. Shamshul Nishan, opposite party No. 1, against the twelve petitioners for offences under Sections 452, 506, 307, 147 amd 148 IPC. It is not disputed that two earlier complaints with respect to the same occurrence were filed by the complainant against the petitioners of prosecution on November 23, 1977 and November 19,1978 respectively. The complaint which was dismissed on November 19, 1978 was filed on November 30, 1977. It is not known when the first complaint was filed which was dismissed on November 23, 1977. Similarly the stage at which the earlier complaint was dismissed on November 23,1977 is not known but the certified copy of the learned Magistrate's order dated November 19, 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.
(2.) 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 keen for having sexual indulgence with the complainant and her daughters, and when he tailed to achieve his purpose, all the petitioners who include young and unmarried girls of Fakhruddin's family, are said to have raided complainant 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 two earlier complaints. This contention has also force. The Supreme Court has laid down in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 S C 876, that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint has been dismissed under Section 203 CrPC but as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204 (1) CrPC 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 proceedings" with the second complaint when a previous complaint on the same allegations was dismissed under Section 203 CrPC. While explaining exceptional circumstances and sufficient ground for proceeding" it was observed that where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or if it was manifestly absured, 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 second complaint on the same facts may be entertained and proceeded with. This case was followed in Bindeswari Prasad Singh v. Kali Singh, AIR 1977 SC 2432, 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 above abservatons of the Supreme Court. In the second complaint (Annexure 1) there were twentyfour 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 1 This fact also shows that the third complaint, on the basis of which the present proceedings are going 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 Jearned 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.
(3.) 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. Petition allowed. in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. He mainly based himself on sub-clause (2) according to which the proper order in cases where opposite party adduced reliable evidence denying public right of way was to stay the proceedings till the existence of that right was decided by a competent court. His contention was that a criminal court had no jurisdiction to decide a civil right like the existence of a public way which lay within the exclusive forum of a civil court only. In this connection he relied upon Nand Kishore v. State of U. P., 1975 ACC 12 which reads as below "In the instant case the objector filed a written statement disputing the existence of public right and denying that any encroachment was made by him on the public way. There was no vagueness or ambiguity in the stand taken by him. In the absence of any material to indicate that prejudice was caused to him on account of failure of the Magistrate to question him wbjen he appeared before him the order of the Magistrate could not be held to be vitiated. The Magistrate however committed illegality when he permitted both the parties to lead oral and documentary evidence in support of their respective claims and based his decision on an evaluation of evidence of rival parties. In this view of the matter the order of learned Magistrate must be quashed". It is correct that the aforesaid case related to the old Code of Criminal Procedure. However the corresponding provision of section 139-A of old Code was in pari materia with present section 117(2) of CrPC. It is also correct that although revisionist had taken a definite stand disputing the existence of a right of public way but his witness Mankeshwar made some damaging statement in his cross-examination also on this point revisionist also filed extract of khasra of 1387 F. which does not mention the existence of a public passage on the disputed land under these circumstances it is obvious that section 137 (2) of the present Code came into play and the only course open to the Magistrate was to stay the proceedings until the matter of the existence of such a right had been decided by a competent court. Thus legal preposition is unassailable.;