Santosh Kumar Sengupta & Others vs Atreyee Sengupta
2022 Latest Caselaw 6616 Cal

                       IN THE HIGH COURT AT CALCUTTA

                     CRIMINAL APPELLATE JURISDICTION

                               APPELLATE SIDE

Present :

The Hon'ble JUSTICE BIVAS PATTANAYAK

                                 C.R.R. 3124 of 2017

                         Santosh Kumar Sengupta & Others

                                     versus

                               Atreyee Sengupta

For the petitioner: Mr. Suman De, Adv.

For the Opposite Party: Mr. Palash Mukherjee, Adv.

Heard on: 22.08.2022.

Judgment on: 15.09.2022



BIVAS PATTANAYAK, J. : -

1.

This revisional application under Section 482 of the Code of Criminal

Procedure has been filed by the petitioners for quashing of proceeding being

complaint case no. AC-1496 of 2015 under Section 498/406/34 of the Indian

Penal Code pending before the learned Judicial Magistrate, 1 st Court, Alipore,

24-Parganas (South).

2.The brief fact of the case is that the opposite party-complainant filed a

complaint against the petitioners-accused persons on 05.02.2015 before the

learned Additional Chief Judicial Magistrate at Barasat, 24-Parganas (North)

with the contention that on 27.11.2014 she was married to one Surajit Sengupta according to Hindu Rites and Customs and the said marriage was

subsequently registered. At the time of marriage various articles including

gold ornaments were given. However after few days of her marriage she was

subjected to torture both physically and mentally over demand of additional

dowry. The petitioners-accused persons threatened the opposite party-

complainant and pressurized her for taking divorce from her husband and

the life of the complainant and her husband became miserable due to illegal

activities of the petitioners-accused persons. On such allegation, inter alia,

the complaint case being no. AC 64 of 2015(TR 52 of 2015) came to be

registered (presently pending before the Learned Judicial Magistrate, 2 nd

Court, Barasat, North-24-Parganas). On similar set of facts the opposite

party-complainant filed another complaint against the petitioners-accused

persons on 11.03.2015before the learned Additional Chief Judicial Magistrate

at Alipore, 24-Parganas (South) registered as complaint case no. AC-1496 of

2015. However, the opposite party-complainant neither in her complaint nor

during her examination on S/A under section 200 of the Code disclosed

before the learned Judicial Magistrate at Alipore of her earlier complaint

pending before Learned Judicial Magistrate, at Barasat. Being aggrieved by

and dissatisfied with the proceeding pending before the learned Judicial

Magistrate, 1st Court, at Alipore being Complain case no. AC-1496 of 2015,

the petitioners have filed the present revision for quashing of said proceeding

being subsequent one.

3. Mr. Suman De, learned advocate appearing on behalf of the petitioners

submitted that the opposite party-complainant on the self-same cause of

action filed two complaint cases one before the learned Additional Chief

Judicial Magistrate at Barasat, being complaint case no. 64 of 2015and

another being the present proceedingbefore learned Additional Chief Judicial

Magistrate at Alipore, presently pending before Judicial Magistrate, 1 st Court,

Alipore. The opposite party- complainant in the present proceeding, which is

subsequent one, did not disclose before the Court about the prior complaint

and as such the process issued in the subsequent proceeding arising out of

self-same cause of action if allowed to continue will amount to abuse of

process law and requires to be quashed for the interest of justice. In support

of his contention he relied on the decision of Hon'ble Supreme Court passed

in T.T Antony versus State of Kerala reported in (2001)6 SCC 181. In the

light of his aforesaid submissions he prayed for quashing of the proceeding

pending before learned Judicial Magistrate, at Alipore.

4.None appeared on behalf of opposite party-complainant in spite of service of

notice when the matter was called on and heard on 10.06.2022. Subsequent

thereto for further clarification the matter was fixed under the heading 'To be

mentioned' and learned advocate for the petitioner was directed to file

supplementary affidavit disclosing the status of the proceeding before the trial

court. On the date of submission of the supplementary affidavit on

22.08.2022 learned advocate for opposite party-complainant appeared and he

was also heard.

5. Mr Palash Mukherjee, learned advocate for the opposite party-complainant

submitted that the cause of action of both the cases is different and as such

those are maintainable in the eye of law. There is no double jeopardy as the

facts and circumstances of both the cases are dissimilar. In the light of his

aforesaid submissions he prayed for dismissal of the instant revisional

application.

6. Before delving into the merit of this application it is profitable to place on

record that it was indicated by the petitioners by way of a supplementary

affidavit that several case numbers were appearing pertaining to the

complaint case no.64 of 2015 before learned Judicial Magistrate, 2 nd Court, at

Barasat, and a report was called for from the concerned court. As per the said

report dated 30th May, 2022 the case numbers C-64 of 2015, C-65 of 2015, C-

355 of 2015, C-734 of 2015 and TR-52 of 2015 relates to the same case and

the case is at present progressing with the number C-355 of 2015.

7.It is found from Annexure 'D' at page 29 of the revisional application that

Complaint Case being No. 64 of 2015 (presently numbered as C-355 of

2015)was filed by the opposite party-complainant before the learned

Additional Chief Judicial Magistrate, Barasat,North-24-Parganas on 5 th

February,2015. Further Annexure 'A' at page 17 shows that Complaint

casebeing no. AC-1496 of 2015, which is the subject matter of the present

revision,was filed by the opposite party-complainant before the learned

Additional Chief Judicial Magistrate at Alipore, 24-Parganas (South) on 11 th

March,2015. Thus, the present proceeding being Complain case no. AC-1496

of 2015 pending before the learned Judicial Magistrate, 1 st court, at Alipore is

a subsequent one. On collating the averments of both the complaints it is

found that the assertions, allegations made in the subsequent complaint are

identical and similar in nature and the narrationsare replication of the

previous one. The dates of the cause of action are also the same excepting

one additional date has been added to the subsequent proceeding. The

subsequent complaint is silent with regard to the pendency of an earlier

complaint. The opposite party-complainant neither during her examination

under section 200 of the Code on 28.06.2015 nor during enquiry under

section 202 of the Code disclosed about her earlier complaint. Accordingly, in

my view the subsequent complaint case being No. AC-1496 of 2015 pending

before the learned Judicial Magistrate, 1st Court, Alipore, South-24-

Parganas, based on identical facts and allegations as of the earlier complaint,

if allowed to continue would be a clear abuse of process of law and process of

court and therefore it needs to be quashed to secure the ends of justice.

8. Learned Advocate for the petitioners relying on the decision of Hon'ble

Supreme Court passed in T.T Antony (supra) contended that the subsequent

complaint is not sustainable in the eye of law. It appears the issues that fell

for consideration before the Hon'ble Supreme Court was whether registration

of a fresh case in the nature of a second FIR under Section 154 of the Code of

Criminal Procedure was valid and could form basis of a fresh investigation

and the Hon'ble Court observed that where police transgresses its statutory

power of investigation the High Court under section 482 of the Criminal

Procedure Code or Articles 226/227 of the Constitution or Supreme Court in

an appropriate case can interdict the investigation to prevent abuse of

process of the court or otherwise to secure the ends of justice. Be that as it

may, the aforesaid decision of the Hon'ble Court does not deal with the aspect

of maintainability of a subsequent complain case on the self-same cause of

action and issuance of process thereof under Section 204 of the Code.

9. In view of the aforesaid discussion, the criminal revisional application

being CRR 3124 of 2017 is allowed. The criminal proceeding being Complain

case being no.AC-1496 of 2015 pending before the learned Judicial

Magistrate, 1st Court, Alipore, 24-Parganas (South), thus, stands quashed.

10. It is however made clear that the observations made hereinabove shall

not have any bearing on the rights and contentions of the parties in the

earlier proceeding being C-64 of 2015 (presently numbered as C-355 of 2015)

pending before learned Judicial Magistrate, 2 nd Court, at Barasat, 24-

Parganas (North).

11. Let a copy of this order be sent to the learned trial court for information.

12. Urgent Photostat Certified copy, if applied for, be supplied to the parties

expeditiously after complying with all necessary legal formalities.

(Bivas Pattanayak, J)