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Ram Kissen Shaw and anr. Vs. Sm. Chandravati Shaw and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ1797
AppellantRam Kissen Shaw and anr.
RespondentSm. Chandravati Shaw and anr.
Cases ReferredPramatha v. Saroj Ranjan
Excerpt:
- .....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.....
Judgment:

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.

3. 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.

4. 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.

5. After a careful consideration of the facts and circumstances of this case we are unable to accept the validity of the submissions made by Mr. Basu. We find substance in the contentions of Mr. Banerjee. The new facts allegod are not such which could not have been brought on record in the previous proceedings. It seevns that in the light of the observation of Borooah and Chanda JJ., a lacuna in the averments as to lack of knowledge was sought to be filled there is however no reference in the record complaint about the quashing of the earlier proceedings by this Court. Hardly any satisfactory explanation is forthcoming for the same. Both Mr. Banerjee and Mr. Dutt have strongly urged that it was a deliberate withholding of material facts from learned Magistrate who could hardly have allowed the complaint had the previous judgment of this Court being brought to his knowledge. It was pointed out that although the other judgment of Talukdar and Banerjee, JJ., was produced before the learned Magistrate which quashed the proceedings against Hari Ram Shaw on the technical ground of non-compliance with Section 200 this other judgment was deliberately withheld. On a comparison of the averments in paragraph 11 of the new complaint with that of the old one no substantial difference is found except the allegations about knowledge. This is not a new fact either. The other averments in paragraph 14 or 15 are mere embellishments about the factum of marriage. But the source of knowledge or the time when these facts came to be known to the petitioners or the circumstances have not been disclosed. The averments seem to be what Mr. Dutta describes as somewhat guarded and a general way of Imputing knowledge which was commented upon by this Court in the earlier proceedings. It is true that there is no bar to the entertainment of a second complaint on the same facts after dismissal under Section 203, Criminal Procedure Code, At the same time it is hardly in the interest of justice that after a complaint has been disposed of by a court after consideration of the case that the complainant, should be allowed another chance to canvass the old complaint. Unless there are cogent and compelling reasons (some of which have been indicated by the Supreme Court already noted above) such an opportunity should not be allowed. We are not satisfied that substantial new facts have beer, added in the second complaint, or that whatever have been added could not have been set out in the earlier complaint. Nor art we satisfied that the- previous order was passed on an incomplete record or misunderstanding of the nature of the complaint There is no manifest error or miscarriage of justice involved in the former proceedings so as to justify continuance of another proceeding on the basis of a de novo complaint. We, therefore, uphold the petition. The Rule is made absolute. The proceedings in Case No. C-189 of 1975 pending before the Additional Chief Metropolitan Magistrate, Calcutta, are quashed,

6. Some arguments were advanced as to whether the entire proceedings against all the persons should be quashed or not. Inasmuch as we find that the second complaint itself should not be entertained, in our view, the entire proceedings should be. quashed. Moreover, the main offence is alleged to have been committed by one of the present petitioners. The other two persons involved in the complaint are merely abettors. The main complaint being quashed it would be hardly worthwhile to proceed with the charge of abetment, We, therefore, feel and order that the entire proceedings in Case No. C-189 of 1975 be quashed.

P.K. Chanda, J.

7. I agree.


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