IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.38054 OF 2007 1. PERVEZ HUSSAIN, SON OF SADAQUAT HUSSAIN 2. SADAQUAT HUSSAIN, SON OF LATE FASAHAT HUSSAIN 3. MUMTAZ HUSSAIN, WIFE OF SADAQUAT HUSSAIN 4. ARSHAD HUSSAIN, SON OF SADAQUAT HUSSAIN 5. MIDHAT HUSSAIN, SON OF SADAQUAT HUSSAIN ALL RESIDENT OF VILLAGE MAUNA, POLICE STATION NASRIGANJ, DISTRICT ROHTAS (SASARAM). AT PRESENT PETITIONERS 2 TO 5 ARE RESIDING AT RAZA RESIDENCY, FLAT NO. 101, SALIMPUR AHRA, POLICE STATION GANDHI MAIDAN, PATNA ……………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. MUMTAZ KHATOON, WIFE OF MD. AZHAR C/O MD. HASILI (BROTHER), RESIDENT OF JAHAJI KOTHI, POLICE STATION KADAMKUAN, DISTRICT PATNA ……………………………………………………………………….OPPOSITE PARTIES ******** FOR THE PETITIONERS :- MR. U.P.CHAINPURI, ADVOCATE MR. CHANDRA MAULI PD. SINGH, ADVOCATE FOR THE S T A T E :- MR. MD. ANSARUL HAQUE, A.P.P. *********** 9 10/02/2011 The only question in this case is whether a second complaint petition on the same facts would be maintainable when the allegations in the first complaint petition has been disbelieved and the complaint itself has been dismissed? In the first complaint petition, the allegations were that the petitioner no. 1 Pervez Hussain was married on 04.04.2000 with the complainant according to the Muslims rites and customs. After her marriage, she remained with her brother till May, 2003. However, she wanted to reside with her husband in her in-laws house, she was not accepted and not permitted to live with them. The complainant lodged a protest before the Human Rights Commission, New Delhi, it is alleged that when the accused 2 persons learnt of her action, they came to her house on 31.12.2003 and assaulted her. The main thrust of the allegations is that except her husband, nobody in the family accepted their marriage. An enquiry was held and after that enquiry, the Court came to the conclusion that the allegations in the complaint are completely false and the complaint petition was dismissed. The order dismissing the complaint petition was challenged by the Opposite Party No. 2 by filing a revision in the Court below. While considering the revision application, the statement on S.A. and the letter written to the Human Rights Commission, New Delhi, it came to light that in fact Pervez Hussain had never married the complainant. The Nikahnama produced by the complainant had blank columns and there was no proof of marriage at all. In the letter written to the Human Rights Commission, it transpired that the complainant was working as maid- servant in the apartment attached to the apartment of the accused persons. It is submitted that in order to induce the petitioner no. 1 to marry her, she had filed this complaint case. It appears that the Court below then dismissed the revision application. Against the order passed in the revision application as contained in Annexure-3, the petitioners came to this Court and filed quashing application which 3 was dismissed for non-prosecution on 02.11.2006. In the mean time, the complainant Mumtaz Khatoon filed a second complaint petition No. 1598 of 2005, in which she has again alleged that she was married to Pervez Hussain on 04.04.2000. In this complaint petition, she has stated that she was living in her matrimonial home, however she was kicked out because of demand of dowry. It is also alleged that when she went to visit her matrimonial home, she was assaulted and again there was a demand of dowry. Complaint Case No. 1598 of 2005 was sent to the Kadamkuan Police Station for institution of First Information Report as the charge sheet was submitted on 30.04.2007 and cognizance was taken on 23.05.2007. Learned Counsel for the petitioners submits that once the complaint petition has been dismissed, a second complaint with respect to the same facts cannot be instituted except under exceptional circumstances. It is further submitted that the very fact that the complainant had suppressed the fact that she had earlier filed a complaint petition, which has been dismissed, would lead to the conclusion that she is trying to mislead the Courts and thus is abusing the process as prescribed under the law. The conflicting claims made in the first and second complaint also indicate that the complainant has come up 4 with a false and fabricated story. This Court will first examine whether a second complaint is maintainable in the facts of this case. It appears that there is a finding of the Court that no marriage subsisted between the petitioner no. 1 and the complainant-Opposite Party No. 2, which finding has been confirmed and has not been disturbed right up till the High Court. The claims made by the complainant that she was married and remained in the house of her brother till May, 2003 in the „first complaint petition‟ and the conflicting claim made in the second complaint petition that after her marriage she was living in her matrimonial home and she was ousted due to dowry would indicate the intention of the complainant-Opposite Party No. 2 which seems to be malicious and for a particular purpose. The fact that she had disclosed before the Human Rights Commission that she was a maid-servant and that the petitioner no. 1 is said to have married her is quite contrary to the case set up by her before the Court while filing the present complaints. Section 203 of the Code of Criminal Procedure provides that after considering the statements on oath of the complainant and all the witnesses and as a result of the enquiry, if the Magistrate is of the opinion that there is insufficient ground for taking cognizance, he would dismiss the complaint. Once, the complaint is dismissed with 5 findings regarding the facts alleged, the filing of the second complaint on the same facts or on facts which are obviously contrary to the earlier facts and not alleged in the first complaint petition would obviously be termed to be false. The Court ought not have entertained the second complaint petition and sent it to the Police Station for registration and investigation. Of course, the Court below did not have the opportunity to know that earlier also a complaint had been filed on the same facts which was dismissed as the complainant had suppressed this vital information from the Court. I may refer to a decision of the Supreme Court in the case of Pramatha Nath Talukdar & Another vs. Saroj Ranjan Sarkar (AIR 1962 SC 876), wherein the Supreme Court has held as follows:- “An order of dismissal under Section 203, Criminal Procedure Code, is however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a mis-understanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced.” 6 I find that since this Court has now noted that earlier complaint petition was filed and the case law on the question, it seems that no exceptional grounds have emerged, which would lead this Court to uphold the order of cognizance taken in the facts of this case. Once the Court comes to a finding that the complaint itself could not have to be entertained, the consequence of entertaining of such a complaint petition would also have to be quashed. This Court also comes to a conclusion in view of the conflicting circumstances with respect to the factum of the marriage and the events which allegedly took place after the marriage would further lead this Court to conclude that the entire prosecution is malicious. In the facts aforesaid, I quash the order dated 23.05.2007 passed in Kadamkuan Police Station Case No. 520 of 2005 pending before the Court of the Sub Divisional Judicial Magistrate, Patna. In the result, this application is allowed. AFR/Anand ( Sheema Ali Khan, J. )