SUDHAMAY BASU, J. -
(1.)THIS rule is for quashing the proceedings in Case No. C/189 of 1975 pending before the Additional Chief Metropolitan Magistrate, Calcutta.
(2.)IT appears that on the 26th of April, 1972, a complaint, being No. C -275 of 1972, was filed by Opposite Party, Chandrawati Shaw before the then learned Additional Chief Presidency Magistrate, Calcutta, against the present petitioners and another Malati Shaw, for offences under Section 494/109, Indian Penal Code and Section 494, Indian Penal Code. On the 6th of May, 1972, the complainant, Chandrawati Shaw, also filed a Matrimonial Suit, being Suit No, 71 of 1972, against Hari Ram Shaw and Malati Shaw and the said suit is still pending. On the 16th of February, 1973, upon a petition filed by the Malati Shaw and Ramkissen Shaw a Division Bench of this Court consisting of Borooah and Chanda, JJ., quashed the said proceedings in C -275 of 1972 in Criminal Revision No. 700 of 1972. The other accused, Hari Ram Shaw, moved this Court and in Criminal Revision No. 818 of 1974 another Division Bench of this Court consisting of Talukdar and Banerjee, JJ., quashed the proceedings inter alia, on the ground of non -conformity with Section 200, Criminal Procedure Code. The said Bench also observed that since a Matrimonial Suit was pending between the parties the issues by the parties raised would be gone into in that suit which would be binding on both the parties. Thereafter on the 26th of April, 1975, Chandrawati once again made a complaint being No. C/189 of 1975 under Sections 494 and 494/109, Indian Penal Code against Hari Ram Shaw and the petitioners. The present application is to quash the proceedings arising out of the said second complaint.
In support of the motion Mr. Nalin Banerjee, the learned Advocate (Mr. Dilip Dutta appearing with him) argued that the present complaint was made mala fide and on suppression of material facts. It was pointed out that in the present complaint no reference was made to the quashing of proceedings by this Court consisting of Borooah and Chanda, JJ. Mr. Banerjee also relied in this connection upon the case of Pramatha v. Saroj Ranjan reported in : AIR1962SC876 in which it was held (page 899) that an order of dismissal under Section 203. Criminal Procedure Code is no bar to the entertainment of second complaint on the same facts but it will be entertained only in exceptional circumstances, namely, where a previous order was passed on an incomplete record or on misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or when new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It was argued that there is nothing to show that the present case fell within the exceptional circumstances referred to above.
(3.)MR . Basu, the learned Advocate opposing the motion, referred to the judgment of Borooah and Chanda, JJ., which is Annexure 'C' to the present petition. It was observed therein that it was nowhere stated in the earlier complaint that either of the accused petitioners were aware that accused Hari Ram Shaw was previously married and that he had a wife living nor was it stated that accused Ram Krishna Shaw gave his daughter Malati in marriage having been aware of any previous marriage of Hari Ram Shaw. Their Lordships obviously were of the view that the complaint disclosed no offences and the same was quashed. Mr. Basu endeavoured to show that the present petition remedied the said defects. In paragraph 11, Mr. Basu pointed out, it was stated that the accused No, 3 with full knowledge of the complainant's valid marriage gave his daughter to the accused No. 1. Similarly in paragraph 12 it was stated that accused No. 2 was also fully aware that the accused No. 1 was legally married. The other additional facts, Mr. Basu pointed out, were in paragraph 15 which state that there was invitation 'of caste people and common friends on the date of marriage and the priest was Chandra Bhusau Upadhayay and Lalooram Hazam was the 'barber'. As to the observation of Talukdar and Banerjee, JJ., regarding the Matrimonial Suit Mr. Basu argued that the revision petition filed by Hari Ram Shaw was disposed of by their Lordships solely on the ground of non -conformity with Section 200, Criminal Procedure Code and the observation was a mere obiter. Mr. Basu further stated that there was no bar in allowing the proceedings to go on the basis of the second complaint, As to the case of Promath Talukdar he stated that the same was dismissed for lack of evidence but in this case in the first complaint there was only lack of averment.