R.N. Dutt, J.
1. On some first information report lodged by one Ashalata Ghosh the police made an investigation and submitted charge-sheet on July 4, 1960 against three persons On August 4, 1960. Ashalata Ghosh filed a petition before the Sub-divisional Magistrate for summoning the petitioner Chunilal Das also On the same date the case was transferred to Sri K R Mondal. Magistrate for disposal The case was suhsequentlv on 6-12-1960 transferred to Sri S N Banerjee Magistrate 1st Class for disposal On December 12, 1960 Ashalata Ghosh filed a petition before Sri Banerjer for summoning the petitioner This petition was rejected on the same day though no final order appears to have been passed on the previous petition filed by her on August 4. 1960 Subsequenth Ashrdata Ghose filed a fresh petition before the same Magistrate for summoning the petitioner. This petition was again rejected on May, 2, 1962, Ashalata Ghosh then moved this Court against this order of rejection but her application was rejected by this Court on July 11, 1962. Then-after on January 22, 1968 the Public Prosecutor who was appearing for the prosecution in the case before the learned Magistrate filed a petition for summoning the petitioner This was rejected by the Magistrate on February 27, 1963 Then again on March 19. 1963 Ashalata Ghosh filed a petition before the Magistrate for summoning the petitioner. This was again rejected. Ashalata Ghosh then moved the Additional District Magistrate against this order of rejection and the Additional District Magistrate on September 20. 1963 set aside the aforesaid order of the Magistrate and directed fresh enquiry Thereafter the same Magistral on November 27. 1963 summoned the petitioner under Ss. 147, 447 and 426 of the Indian Penal Code The petitioner has obtained this Rule fur quashing the proceeding thus instituted against him
2. It is not disputed that the learned Magistrate could summon an accused against whom no charge-sheet was submitted by the police before he framed charge under S 251A (3) of the Code of Criminal Procedure What we find in this case is this that Ashalata Ghosh, the de facto complainant, made ji prayer before the Magistrate for summoning the petitioner This was first rejected on December 12. 1960 She again made the same prayer on the self same facts and this again was rejected on Mav 2. 1962. She then moved this Court against this order of rejection but this Court rejected her application. What we then find is that though this Court rejected her application she again made the self-same prayer on the self-same facts before the Magistrate on March 19. 1963 but her prayer was again rejected as we have said But then under orders of the Additional District Magis-trale the learned Magistrate summoned the petitioner under Sections 147, 447 and 426 on 27-11-1963. Mr. Bose appearing for Ashalata Ghosh and Mr. Ranerjee appearing for Ihe State sub-mit that the order rejecting Ashalata Ghosh's prayer for summoning the petitioner made on Mav 2. 1962 was not on merits but on the ground of delay but the present order summoning the petitioner was made after consideration on merits But that is besides the point. When Ashalata Ghosh moved this Court against the order made by the learned Magistrate on Mav 2. 1962 this Court rejected her application though conscious of the fact that the learned Magistrate did not consider the matter on merits but refused to summon (he petitioner on the ground of delay. Ashalata Ghosh. after her petition was rejected by this Court, could no longer move the learned Magistrate on the self-same facts for the self-same order Mr. Banerjee submits that on January 22 1963 Ashalata Ghosh did not move the Magistrate but the Public Prosecutor moved the Magistrate This was so but the prayer of the Public Prosecutor was rejected on 27-2-1963 The State did not move against that order of rejection Ashalata Ghosh again came into the picture and made the self-same prayer on the self-tame facts on March 19, 1863. The present order issuing summont against the petitioner is in consequence of that prayer made over again by Ashalata Ghosh. If Ashalata Ghosh is allowed to do this the finality of the order made by this Court will be lost. It is true that even after the rejection of her application by this Court, the Magistrate could himself summon the petitioner on perusal of the police papers before framing charge under Section 251A(8) of the Code but here in this case he did not act suo motu. His order is a direct consequence of the prayer made by Ashalata Ghosh over again on March 19. 1963 Ashalata Ghosh was not competent after the orders of this Court made on July 11, 1962 to move the Magistrate for the self-same order over again and hence the subsequent proceeding arising out of such fresh prayer must be said to be an abuse of the process of the court and in that view of the matter the present proceeding against the petitioner must be quashed.
3. We should however make It dear that If the learned Magistrate hearing the case is satisfied after taking evidence that some per-son or persons should also be tried he will he free to art in accordance with law.
4. In the result the Rule is made absolute and the order summoning the petitioner under Sections 147, 447 and 426 of the Indian Penal Code is set aside and the present proceeding against the petitioner is quashed.
5. I agree.