IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 798 of 2010
…….
Rohan Mahto, S/o Late Nevat Mahto, Resident of Village Pindatanr,
P.O.Pindatanr, P.S. Giridih (Mufasil), DistrictGiridih
…. …. …. Petitioner
Versus
1. The State of Jharkhand
2. Reshmi Devi, W/o Sri Taleshwar Mahto, Resident of Village
Pindatanr, P.O.Pindatanr, P.S. Giridih (Mufasil), DistrictGiridih
…. …. …. Opp. Parties
CORAM: HON’BLE MR. JUSTICE B. B. MANGALMURTI
For the Petitioner : Mr. Arwind Kumar, Advocate
Mr. Ashok Kumar Singh, Advocate
For the State : Mr. Tapas Roy, A.P.P.
C.A.V ON:25.08.2017 PRONOUNCED ON: 31.08.2017
Applicant has prayed for quashing of the order dated
11.11.2009
passed by Sessions Judge, Giridih in Cr. Revision No.40 of
2009 by which the order dated 02.04.2009 passed by Sub Divisional
Judicial Magistrate, Giridih in Complaint Case No.1309 of 2007 in
which cognizance under Sections 323 and 354 of the Indian Penal
Code was taken, have been set aside. Further prayer is for quashing of
the subsequent order dated 17.04.2010 passed by the Sub Divisional
Judicial Magistrate, Giridih in Complaint Case No.1309 of 2007
whereby the Court taken the cognizance against the petitioner under
Sections 323 and 376 of the Indian Penal Code without following the
direction of the Sessions Judge dated 11.11.2009. The further prayer
is for quashing the entire criminal proceeding pending against the
petitioner arising out of Complaint Case No.1309 of 2007 pending in
the Court of Sub Divisional Judicial Magistrate, Girdih.
2. The prosecution case, in short, is that the complainant namely
Reshma Devi had gone to her farm with basket and Hasua for
collecting grass at Korma situated in village Pindatanr at about 4.30
p.m. Suddenly, accused Rohan Mahto caught hold her from back side
and after pressing her mouth dragged her on the ground near a ditch
besides the farm and committed rape upon her against her will. When
she resisted, the accused assaulted her with fist and slaps. The further
case is that since her husband was outside village so the complaint
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went to Police station with witness Dwarika Mahto but the Police did
not register the case. She lodged a case before the Court of learned
Magistrate, Giridih on 13.10.2006 which was numbered as Complaint
Case No.1395 of 2006. Although the Sections 323 and 376 of the
Indian Penal Code was alleged in the complaint petition but the
cognizance of offence was taken under Section 354 of the Indian
Penal Code and the requisites were directed to be filed by 30.05.2007.
It is further stated that Complaint petition was dismissed on
18.06.2007 as order for filing requisites were not complied with.
Thereafter, complainant preferred a revision before the Sessions
Judge, Giridih which was numbered as Cr. Revision No.102 of 2007
and the same was pending. It was further mentioned that one
application was also filed for restoration of said complaint case but
the same was rejected by the Court of Magistrate vide order dated
01.08.2007 and thereafter she filed Second complaint petition which
has been numbered as 1309 of 2007.
3. Counsel for the accusedpetitioner submitted that first complaint
petition no.1395 of 2006 was filed with allegation under Section 376
I.P.C. but the learned Court of Magistrate found prima facie case only
under Section 354 of the Indian Penal Code. Since the order of filing
requisites were not complied with resulting to dismissal of first
complaint case then she preferred a criminal revision which was
numbered as 102 of 2007 before the Sessions Judge but during its
pendency, the Second complaint case was filed as per averment made
in Para 4 of the second complaint petition. He further submitted that
the second complaint was filed on 04.08.2007 and the Cr. Revision
No.102 of 2007 was withdrawn on 10.09.2007 by seeking permission
to withdraw. The permission was accorded and the revision was
dismissed as withdrawn and the copy of the order with Lower Court
Record was ordered to be sent to the Court concerned. Counsel for the
accusedpetitioner further submitted that by withdrawing the criminal
revision, the inference should be that the order taking cognizance
under Section 354 of the Indian Penal Code attains finality. He also
submitted that as per assertion in the second complaint petition, the
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complainant after knowledge of dismissal of her first complaint
petition had also filed an application for its restoration but the same
was rejected by the Court of learned Magistrate on 01.08.2007. He
further submitted that the second complaint was filed on 04.08.2007
whereas the revision filed against the order taking cognizance of the
first complaint was pending and application seeking permission to
withdraw was granted on 10.09.2007 that shows the conduct of the
complainant. Since the cognizance was not taken as per her desire,
then she filed second complaint case on the same set of fact narrating
the same incident. Counsel for the accusedpetitioner also submitted
that the complainant was in full knowledge of dismissal of first
complaint and the pendency of criminal revision but suppressing the
same, she filed second complaint against this petitioner narrating the
same set of incidence and again Sections 323 and 376 of the Indian
Penal Code were mentioned on the basis of same set of witnesses also.
He relied on a judgment of Poonam Chand Jain Another Versus
Fazru reported in (2004) 13 SCC 269 and submitted that the Hon’ble
Court has laid down that only in exceptional circumstances under
three categories (i) manifest error (ii) manifest miscarriage of justice,
and (iii) new facts which the complainant had no knowledge or could
not with reasonable diligence have brought forward in the previous
proceedings could file second complaint case. Any exceptional
circumstances coming within anyone or more of the aforesaid three
categories would fulfill the test. Lastly, he has submitted that in first
complaint, order taking cognizance under Section 354 I.P.C. attained
finality in view of the withdrawal of criminal revision. Subsequent
filing of second complaint on same set of fact, circumstances and
witnesses, is an abuse of process of law as the Court of learned
Magistrate has not taken cognizance under the desired Sections. The
Court of Sub Divisional Judicial Magistrate, Giridih took cognizance
under Sections 323 and 354 of the Indian Penal Code in Second
Complaint Case No.1309 of 2007 also. Advancing his argument, he
questioned the authority of the Court of Magistrate in taking
cognizance on third occasion as on earlier two occasions on the same
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identical material the Court has found it false and improbable the
allegation of ingredient of Section 376 of IPC. The direction of the
Sessions Court passed in Cr. Revision No.40 of 2009 for further
enquiry was not followed by the Court of Magistrate and mechanically
took the cognizance under Sections 323 and 376 of IPC vide order
dated 17.04.2010.
4. Mr. Tapas Roy, A.P.P. appearing on behalf of State being O.P. No.1
submitted that in spite of valid service upon O.P. No.2Reshma Devi,
no appearance has been made on her behalf. He further submitted
that the first complaint was dismissed for default so it was not a final
order. He further submitted that the revision preferred against that
order was withdrawn after filing of second complaint petition.
Therefore, in this situation second complaint is maintainable.
5. Considering the pleadings of the parties and in the facts and
circumstances of the case, it would appear that initially Complaint
Case No.1395 of 2006 was filed in which cognizance under Section
354 IPC was taken, but the requisites could not be filed within time,
therefore, it stood dismissed. Against that order, she preferred a
revision as Cr. Revision No.102 of 2007. During pendency of this
revision, second complaint (1309 of 2007) was filed on the identical
facts and allegations. The Court took cognizance under Sections 323
and 354 IPC vide order dated 02.04.2009. The complainant
challenged the part of the order taking cognizance in Cr. Revision
No.40 of 2009 as the Court has taken cognizance under Section 354
IPC instead of 376 IPC. The revisional Court after consideration of the
matter set aside the part of the order dated 02.04.2009 passed by the
Court below taking cognizance under Section 354 IPC and directed to
proceed further with an enquiry in accordance with law and proceed
further after hearing the complainant or her counsel. Thereafter, the
Court of S.D.J.M. took cognizance under Sections 323 and 376 of the
Indian Penal Code on 17.04.2010. The ratio of the judgment reported
in Poonam Chand Jain (supra) applies in this case as the second
complaint was nothing but a repetition of the averments of the first
complaint and was in essence a fresh attempt to reopen the matter
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which have attained finality. In Hiralal Others Vs. State of Uttar
Pradesh others reported in (2009) 11 SCC 89 the Court also
considered the decision rendered in Mahesh Chand Vs. B.
Janardhan Reddy Another reported in (2003) 1 SCC 734 and held
that second Complaint can lie only on fresh facts and/or special case
is made out. Here in this case no exceptional circumstances were
brought on record necessitating for filing of second complaint. Since
the Court took cognizance under Sections 323 and 354 IPC and has
not taken cognizance as per the desire of the complainant she allowed
the first complaint to be dismissed for nonprosecution and filed
subsequent complaint application even without withdrawing the
criminal revision preferred against the order of first complaint
petition. Even pendency of criminal revision relating to first complaint
was not mentioned and was suppressed knowingly.
6. In this situation and in the facts and circumstances of the case as
well as in the interest of justice, order dated 17.04.2010 by the Court
of S.D.J.M., Giridih taking cognizance under Sections 323 and 376
IPC as well as the entire criminal proceeding of Complaint Case
No.1309 of 2007 are hereby, quashed.
7. In the result, instant criminal miscellaneous petition is allowed.
(B.B.Mangalmurti, J.)
Jharkhand High Court
Dated, 31st August, 2017
Anit/A.F.R.