- (1.) HEARD the parties. The instant application has been filed under Section 482 Cr.P.C. by the petitioners prayed for quashing the entire criminal proceedings pending against them in the Court of Smt. Sangeeta Srivastava, Judicial Magistrate, Ranchi vide Complaint Case No. 43 of 2003 and also the order dated 24.3.2003 passed by the trial court whereby summons were issued against the petitioners directing them to appear and face trial for the offences under Sections 323 and 379 I.P.C. in respect of the cognizance was earlier taken.
(2.) THE background circumstances relating to the case is that a complaint was filed by the opposite party no. 2, Zohra Khatoon against the present petitioners before the learned Chief Judicial Magistrate, Ranchi which was registered as Complaint Case No. 43 of 2003 alleging, inter alia, that the complainant 'smarriage with accused no.1, Jamil Akhtar was solemnized according to Muslim Law on 5.5.1992. In course of their co -habitation two children were born to the complainant. It is alleged that in course of time the husband, namely, Jamil Akhtar (petitioner no.1), who was employed as a clerk at CIP Kanke Ranchi, had developed extra marital relation with the petitioner no.2, Olga Pentoni, a staff nurse working at the same hospital and on protest made by the complainant, the husband and the said lady (petitioner no.2) used to subject her to ill -treatment including physical assault. It is also alleged that the petitioner no.I, who is a mediator used to misguide the complainant 'shusband, and he had snatched away the gold chain from the complainant. It is further alleged that a piece of land measuring 4 decimals which the complainant had purchased and over which she had constructed house with financial aid extended by her father, was fraudulently sold away by her husband, | Jamil Akhtar. The learned Magistrate to whom the case was transferred by the Chief Judicial Magistrate for inquiry and disposal under Section 192 (2) Cr.RC, conducted an inquiry and by the order impugned, had recorded his finding that a prima facie case for the offences under Sections 406/323/379 I.P.C. has been made out against the husband of the complainant (accused no.1) and for the offences under Sections 323/379 I.P.C. against accused no.2 and against accused no. 3 both of whom are the present petitioners. The petitioners have assailed the aforesaid order primarily on the ground that the order has been passed by the learned Magistrate without jurisdiction and without application of judicial mind to the facts and circumstances of the case and that complaint was filed by the opposite party no. 2/complainant by suppressing material facts.
(3.) MRS . Manjusri Patra, learned counsel appearing for the petitioners explains that prior to the filing of the instant application, the same complainant had filed a complaint before the Chief Judicial Magistrate, Ranchi on 11.10.2002 which was registered as Complaint Case No. 664 of 2002 for the offences under Sections 420,406, 498A, 307, 341, 467, 468, 342, 323 and 34 I.PC. and Sections 3 and 4 of the Dowry Prohibition Act against the same set of accused persons, namely, husband of the complainant and the present petitioners and after conducting an inquiry under Section 202 Cr.P.C. the learned Magistrate before whom the case was transferred, had dismissed the complaint by observing that no prima facie case is made out for any offence against the accused persons. The same complainant had earlier filed an F.I.R. which was registered as Jagarnathpur P. S. Case No. 111 of 2002 which was referred to the court of Chief Judicial Magistrate and registered as G.R. No. 2875 of 2002 for the offences under Section 498A, 323, 420 I.PC. and Section 3/4 of the Dowry of Prohibition Act. The petitioners had filed a petition for quashing the entire criminal proceedings arising out of F.I.R. and after hearing both the parties in detail, this Court vide its order dated 28.4.2004 passed in Cr. M. P. No. 446 of 2003, had quashed the entire criminal proceedings. Yet again the same complainant on identical allegations had filed another complaint against the present petitioners and her husband which was registered as complaint case no. 715 of 2002 for the offences under Section 497 I.PC. in which she had made the same allegations of her husband maintaining extra marital relation with the petitioner no. 2. After considering the statement of the complainant and her three witnesses, the learned Magistrate before whom the case was transferred for inquiry and disposal, had dismissed the complaint vide order dated 23.12.2002. The present complaint, yet another of its kind, has been filed against the same set of accused persons including the present petitioners on the same allegations which was earlier raised but this time in course of inquiry on examining the same set of witnesses under Section 202 Cr.P.C. the learned court below proceeded to record its finding that a prima facie against the petitioners for the aforementioned offences is made out. Learned counsel explains that the present complaint as filed by the complainant on the same allegations against the same accused persons is entirely a misuse of the process of the court since the earlier complaint on the same facts was dismissed by the competent court. Finding fault with the observations recorded by the learned court below in the impugned order, learned counsel submits that though a second complaint on the same facts is not barred under the law, but the principle of law in this context has been misconceived by the learned Magistrate. It is explained that the principle of law is that though second complaint is not a bar but it is permissible only under exceptional circumstances and in the present case there exists no exceptional circumstance to enable the learned court below to entertain second complaint on the same facts. Learned lawyer in support of her contention to the judgment of the Supreme Court passed in the case of Poonam Chand Jain &Anr., vs. Fazru reported in 2005(1) East Cr. C. 118 (SC). ;